United States: California Codifies When COVID-19 Illness Will Be Presumed Job-Related For Workers' Compensation Purposes

Here's a rundown of who is covered under SB 1159 -- an important new law that all California employers need to understand.  

Background. In May 2020, as part of the state's "Expanded Workforce Safety Net", Governor Newsom issued an Executive Order creating a rebuttable presumption that in certain circumstances an employee's COVID-19 related illness arose out of the course of employment and, as a result, is covered by workers' compensation benefits. That Executive Order expired on July 6, 2020.

Who is covered? SB 1159, enacted September 17th, picks up where the Executive Order left off. The new law specifically applies this rebuttable presumption to two categories of workers in the state. The first category is First Responders and Health Care Workers and includes firefighters, certain peace officers, paramedics and emergency medical technicians, and employees of designated health facilities.

The second category of workers covered by SB 1159 are those that are protected by the "Outbreak Presumption" which is triggered when employees whose employers have 5 or more employees test positive for COVID-19 during an outbreak at their workplace. An "Outbreak" occurs within 14 days of one of the following occurring at a workplace:

• For employers who have 100 or fewer employees at a workplace, 4 employees test positive for COVID-19.
• For employers who have more than 100 employees at a workplace, 4% of the employees who report to that workplace have tested positive for COVID-19.
• A specific workplace is ordered to close by a local health department, the state department of public health, CalOsha, or a school superintendent due to a risk of infection of COVID-19.

Similar to its Executive Order predecessor, a "place of employment" for SB 1159 does not include an employee's residence; employees must work at the place of employment in response to their employer's direction. In addition, employees must exhaust all COVID-related sick leave benefits in order to be eligible for workers' compensation benefits which include "full hospital, surgical, medical treatment, disability indemnity and death benefits." New additions to this law include a specification that an acceptable "test" is a PCR (Polymerase Chain Reaction) test or other test approved by the FDA and exclude antibody or serological testing to establish an injury.

Reporting requirement. The new law also includes a strict reporting requirement. Under the law, all employers who know (or reasonably should know) that an employee has tested positive for COVID-19 must report to their workers' compensation claim administrator within 3 business days the following information :

• A written statement that an employee has tested positive for COVID-19. Employers are cautioned not to provide identifying information of the employee unless the employee claims the infection is work-related or has already filed a claim for benefits;
• The date the employee tested positive;
• The address of the employee's specific place of employment during the 14 days preceding the positive test result; and
• The highest number of employees that worked at the employee's specific place of employment in the 45-day period preceding the last day the employee worked there.

Penalties. An employer that provides false or misleading information or fails to make a required report at all can be subject to a civil penalty up to $10,000.00.