As many of you are aware, on September 17, 2020, California Governor Gavin Newsom signed into law SB 1159, concerning Workers Compensation, COVID-19 and Critical Workers. This new law adds Labor Code sections (§3212.86-3212.88) that codify the Executive Order signed by Governor Newsom on May 6th, 2020 and expand the rebuttable presumption of compensability for certain employees who test positive for COVID-19. SB 1159 was intialliay set to expire January 1, 2023; with the passage of AB-1751 however, CA COVID presumptions and COVID case notification-to-administator requirements now remain in effect until January 1, 2024.
How the Presumption Now Works
The presumption applies to any employee in California who works for an employer with five or more employees, works at that employee’s place of employment at the employer’s direction on or after July 6, 2020, and tests positive for COVID-19 within 14 days of such work if there is an “outbreak” in the 14 days prior to the employee’s positive test.
An outbreak exists if within 14 calendar days one of the following occurs:
· If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19.
· If the employer has more than 100 employees at a specific worksite, 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 designated local, state or federal entity.
A separate presumption exists for first responders and specified health care workers as delineated in §3212.87. Specifically, regardless of whether there is an “outbreak,” a presumption exists for these such workers who worked at the employer’s “specific place of employment” at the employer’s direction, on or after July 6, 2020, and tests positive for COVID-19 within 14 days of such work.
New Notification Requirements
In order to determine if an outbreak exists, new notification requirements for an employer have been created. Effective immediately, this new law requires employers to notify their claims administrator of ANY knowledge of a positive COVID test, whether it is being alleged as a workplace exposure or not, to their claim’s administrator, dating back to July 6, 2020.
Specifically, the law states the following:
When an employer “knows or reasonably should know that an employee has tested positive for COVID-19” the employer must report to its claim’s administrator the following information within three business days, via e-mail or fax:
· An employee has tested positive. The employer shall not provide any personally identifiable information regarding the employee who tested positive for COVID-19 unless the employee asserts the infection is work-related or has filed a claim form pursuant to Labor Code Section 5401.
· The date the employee tests positive—this is the date the specimen was collected for testing.
· The address or addresses of the employee’s specific place(s) of employment during the 14-day period preceding the date of the employee’s positive test.
· 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.
There are separate reporting requirements for positive tests between July 6, 2020 and September 17, 2020. If an employer is aware of an employee who has tested positive during this period, the employer must report the information in the first three bullet points above. However, instead of the last bullet point, 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.
It is imperative these notification requirements are followed. Employers may be subject to civil penalties of up to $10,000 for intentionally submitting false or misleading information, or for failing to report required information. For more information, see https://www.dir.ca.gov/dwc/Covid-19/FAQ-SB-1159.html.