Disputable Presumption for Workers Compensation for Workers Who Test Positive for Covid-19 During an Outbreak

Stokes Wagner
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On September 17, 2020, Governor Newsom approved Senate Bill No. 1159, which creates a framework for COVID-19 related workers’ compensation claims. The new law adds Section 3212.88 to the California Labor Code and applies to employees of employers with 5 or more employees (other than first responders and certain health workers) who test positive during an outbreak at the employee’s specific place of employment. The law will remain effective until January 1, 2023.

The bill covers claims for an “injury” defined as illnesses or death resulting from COVID-19 if the following circumstances apply:

  1. The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.
  2. The day referenced above on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after July 6, 2020. The date of injury is the last date the employee performed services at the employee’s place of employment at the employer’s direction prior to the positive test.
  3. The employee’s positive test occurred during a period of an “outbreak” at the employee’s specific place of employment.

A Disputable Presumption: Senate Bill No. 1159 created a disputable presumption that the injury arose out of and in the course of employment. The presumption may be controverted by evidence, and unless controverted, the appeals board is bound to find in accordance with the presumption.

Evidence that employers can utilize to controvert the presumption includes:

  • Evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment.
  • Evidence of an employee’s nonoccupational risks of COVID-19 infection.

For injuries that occur on or after July 6, 2020, the claim administrator has 45 days to deny the claim, or else the injury is presumed compensable. After the 45 day period, the presumption of compensability is rebuttable only with evidence discovered subsequent to the applicable investigation period.

The Employer’s Reporting Requirements: SB 1159 requires employers to report to their claim administrator when the employer knows or reasonably should know that an employee tested positive for COVID-19. The report must be in writing via email or facsimile within three business days and include all of the following information:

  1. An employee tested positive, without disclosing personally identifiable information, unless the employee asserts the infection is work-related or has filed a claim.
  2. The date the employee tests positive, and the date the employee was tested.
  3. The specific address or addresses of the employee’s specific place of employment during the 14-day period prior to the positive test result.
  4. The highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period prior to the last day the employee worked at each specific place of employment.

Benefits the Employee is Entitled To: Employees who are deemed to suffer an injury are entitled to full hospital, surgical, medical treatment, disability indemnity, and death benefits.

If an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits are due and payable. If an employee does not have those sick leave benefits, the employee shall be provided temporary disability benefits. There is no waiting period for temporary disability benefits.

The Law Applies to Pending Matters: This section cannot be used to reopen any final award of workers’ compensation but does apply to all pending matters unless otherwise specified.

DEFINITIONS

Test: “Test” or “testing” refers to the Polymerase Chain Reaction (PCR) test or any other viral culture test approved by the FDA to detect the presence of viral RNA, which has the same or higher sensitivity and specificity as the PCR Test. “Test” or “testing” does not include serologic testing, also known as antibody testing.

Specific Place of Employment: A “specific place of employment” means 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 their home or residence.

Outbreak: An “outbreak” exists if within 14 calendar days one of the following occurs at a specific place of employment:

  1. 4 employees test positive, and the employer has 100 employees or fewer at a specific place of employment
  2. 4% of the employees who reported to the specific place of employment tests positive and the employer has more than 100 employees
  3. A specific place of employment is ordered to close by a local public health department, the State Department of Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection with COVID-19.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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