Following the Executive Order of May 6, 2020 allowing any COVID-19 related illness of an employee to be presumed industrially compensable, on September 17, 2020, Governor Newsom approved two bills that specifically address the COVID-19 crisis. Below are details of each law and our thoughts.
California SB 1159 picks up where the Executive Order leaves off, as the Executive Order expired July 5, 2020. SB1159 is an urgency statute and therefore effective retroactive to July 6, 2020. The law, good through January 1, 2023, establishes a rebuttable presumption for COVID-19 claims for certain first responders (police and fire) and specific health care workers (emergency medical services, home healthcare workers, and any health facilities workers providing direct patient care who have had contact with a patient within 14 days of a positive COVID-19 test).
For all other employees, SB1159 creates a rebuttable presumption for workers’ compensation benefits to those whose exposure during an “outbreak” is defined as follows:
- For employers with 100 employees or less, when 4 employees test positive for COVID-19 in a 14-day period
- For employers with more than 100 employees, when 4% of the employees test positive in a 14-day period
- For employers if the workplace is ordered closed by public health authorities or Cal/OSHA due to the risk of COVID-19 infection.
Benefits under the law
Employees are entitled to medical treatment, disability indemnity, and death benefits. The Department of Industrial Relations waived entitlement to any death benefits under Labor Code Section 4706.5 in the event the deceased employee did not have any dependents. If an employer offers paid sick leave benefits specifically available in response to COVID-19 (including paid sick leave time under the FFCRA and the CARES Act), those benefits shall be used and exhausted before any temporary disability benefits or the following benefits are due and payable:
- Benefits afforded to peace officers and firefighters under Labor Code sections 4800, 4800.5, or 4850.
- Industrial accident and illness leave for employees of K-12 schools and community colleges under Education Code Sections 44977, 44984, 45192, 45196, 87780, 87787, 88192, or 88196.
If an employee does not have those sick leave benefits, the employee shall be provided temporary disability benefits or Section 4850 benefits, if applicable, from the date of disability. There shall not be a waiting period for temporary disability benefits.
There is a reporting requirement with SB1159. If an employer knows or reasonably should have known an employee has tested positive for COVID-19, then the employer must report all the following information to their work comp carrier in writing via email or fax within 3 business days:
- An employee has tested positive. For purposes of this reporting, 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 § 5401.
- The date the employee tests positive, which is the date the specimen was collected for testing.
- The specific address or addresses of the employee’s specific place 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.
A separate reporting requirement applies for any employer aware of an employee testing positive on or after July 6, 2020, and prior to September 17, 2020.
Those employers must report to their claims administrator, in writing via email or fax, within 30 business days of September 17, 2020, all of the data required above, including the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between July 6, 2020, and September 17, 2020.
Employers or those acting on behalf of employers who fail to submit or intentionally submit false or misleading information are subject to a civil penalty of up to $10,000.00.
California AB 685, effective until January 1, 2023, imposes new COVID-19 reporting requirements for California employers, requiring that if the employer receives a “notice of potential exposure” to COVID-19, then within one business day, they must do the following:
- Provide written notice to all employees on the premises of the worksite at the same time as the qualifying individual within the infectious period;
- Provide notice to any union representative;
- Provide employees and union representatives with information regarding COVID-19 benefits the employees may be entitled to under Federal, state, and local laws; and
- Notify all employees of the disinfection and safety plan the employer will implement and complete per DCD guidelines.
Please note this is a rebuttable presumption, not an absolute one, so some defenses are available. If you have any questions regarding the new COVID-19 legislation, please contact us as we’d be happy to discuss this at length and provide the necessary guidance through these troubled times.
Please stay safe and healthy.
Top Photo credit - Gage Skidmore, Wikimedia Commons CC License 2.0