In response to COVID-19, Governor Newsom issued Executive Order N-62-20 on May 6, 2020. That order created a “rebuttable presumption” that certain employees who suffer a COVID-19 related illness or injury would be presumed to have contracted the virus in the course and scope of employment for purposes of applying for and receiving workers’ compensation benefits.
But, on September 17, 2020, Governor Newsom signed SB 1159 into law, which changes the standard from “rebuttable” to “disputable” presumption. It also adds new rebuttable presumptions for employees who contract COVID-19 on or after July 6, 2020, and who are either (a) first responders and health care professionals who test positive within 14 days after their last day of work; or (b) all other employees who test positive during an “outbreak” at the employee’s worksite and the employer has five or more employees. SB 1159 was signed into law as emergency legislation and, therefore, became effective the day it was signed.
What Does This Mean for Employers?
Under SB 1159, if an employee suffers an illness or death resulting from COVID-19 on or after July 6, 2020 through January 1, 2023, there is a “disputable presumption” that the illness or death arose out of and in the course and scope of employment. Because this presumption is disputable, an employer will be able to present evidence to dispute that the illness or death was in the course and scope of employment by showing: (1) the measures the employer put in place to reduce potential transmission of COVID-19 in the workplace; (2) any evidence of the employee’s risk factors for a COVID-19 infection; (3) statements made by the employee; and (4) any other evidence normally used to dispute a work-related injury.
Who is Covered?
SB 1159’s “disputable presumption” applies to all employees (a) who test positive during an outbreak at the employee’s specific place of employment, and (b) whose employer has five or more employees. The presumption only applies for illness or death resulting from COVID-19, but in order for the presumption to apply, all of the following conditions must exist:
- The employee tests positive for COVID-19 within 14 days after such a date when 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 service at his/her place of employment at the employer’s direction was on or after July 6, 2020; and
- The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.
What Benefits are Employees Entitled to?
If the presumption applies, the employee is entitled to “full, hospital, surgical, medical treatment, disability, indemnity, and death benefits.” In the event the deceased employee does not have any dependents, the Department of Industrial Relations has waived the entitled to any death benefits under California Labor Code Section 4706.5.
Temporary Disability Benefits
Under SB 1159, if an employee is eligible for paid sick leave benefits “specifically available in response to COVID-19,” such as those available under the Families First Coronavirus Response Act (or “FFCRA,” which we previously blogged about here and here), those benefits must be used and exhausted before using any temporary disability benefits. If an employee does not have such paid sick benefits available to him/her, then the employee must be provided temporary disability benefits without the three-day waiting period. Whether an employee qualifies for temporary disability benefits depends on the date that the employee tested positive or was diagnosed with COVID-19.
For employees who test positive or are diagnosed with COVID-19:
- On or after May 6, 2020 – A licensed physician must certify the employee for temporary disability within the first 15 days after the initial diagnosis; then, the employee must be re-certified every 15 days thereafter for the first 45 days following diagnosis.
- Before May 6, 2020 – The employee must have obtained a certification no later than May 21, 2020 documenting the period for which the employee was temporarily disabled and unable to work, and must have been re-certified for temporary disability every 15 days thereafter for the first 45 days following diagnosis.
Employers have new reporting requirements under SB 1159. When an employer “knows or reasonably should know that an employee has tested positive for COVID-19,” the employer must report, within three business days, to its claims administrator by e-mail or fax, the following information:
- That an employee has tested positive;
- The date on which the employee tested positive (i.e., the date the specimen was collected for testing);
- The address(es) of the employee’s specific place(s) of employment during the 14-day period preceding the date of the employee’s positive test; and
- The highest number of employees who reported to work at the employee’s specific place of employment in the 45-day day period preceding the last day the employee worked at each specific place of employment.
An employer who is aware of an employee who tests positive between July 6, 2020 and September 17, 2020 must report the information (items 1-3 above) within 30 business days of the date the legislation took effect. But, instead of reporting item #4 above, the employer must report the highest number of employees who reported to work at each of the employee’s specific places of employment on any work date between July 6, 2020 and September 17, 2020.
Employers need to ensure that they follow the reporting requirements timely, as SB 1159 imposes a penalty of $10,000 for an employer that “intentionally submits false or misleading information or fails to submit information.”
How Do Employers Know if They Have an Outbreak?
An outbreak exists under SB 1159 if, within 14 consecutive calendar days, one of the following occurs at a specific place of employment:
- The employer has 100 employees (or fewer) at a specific place of employment, and 4 employees test positive for COVID-19.
- The employer has more than 100 employees at a specific place of employment, and 4% 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 to close 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 infection with COVID-19.
If there is an outbreak, the presumption of compensability is applicable. However, for the presumption to apply, the employee must test positive during an outbreak. Thus, if there is no outbreak, there is no presumption.
What Do Employers Need to Do Now?
While SB 1159 does impose strict reporting requirements on employers, it also provides some relief for employers since they are now able to present evidence to dispute the presumption. Employers should continue to be diligent about maintaining and ensuring a safe work environment. Laws related to COVID-19 are constantly changing; therefore, it is imperative for employers keep abreast of these changes. Working with experienced employment counsel can assist employers in ensuring the reporting is done timely and properly.
The full text of SB 1159 can be found here.