CA Governor Newsom Signed SB 1159: Employer Reporting Requirements for Employees with COVID-19 FAQ

On September 17th, Gavin Newsom signed into law Senate Bill 1159. As discussed in our previous article, the bill establishes three rebuttable presumption labor codes for employees contracting COVID-19 and puts substantial reporting requirement burdens on employers and claim administrators.

New COVID-19 Presumption Criteria

Peace officers, healthcare facility workers, firefighters, rescue service coordinators, and in-home support service employees

• Test positive within 14 days after a day that the employee performed labor or services at the employee's place of employment at the direction of employer on or after July 6, 2020.
• The presumption extends to such employees following termination of service for a period of 14 days, commencing with the last date worked

All Other Employees (not mentioned above)

• An employee must test positive 'during an outbreak' at the specific place of employment AND whose employer has five or more employees
• Test positive within 14 days of performing labor at the specific place of employment (not employee's home or residence) on or after July 6, 2020 at the direction of the employer.
• The presumption extends to such employees following termination of service for a period of 14 days, commencing with the last date worked.

Common Questions and Answers

What is the definition of an outbreak?

• 100 employees or fewer (at a specific location): Four or more employees test positive within a 14-day period
• More than 100 employees (at a specific location): 4 percent of the number of employees who reported to the specific place of employment, test positive for COVID-19 within a 14-day period
• The location 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.

The case may be presumed compensable if it meets all the criteria above. A DWC-1 claim form should be provided to the employee and reported to the claims administrator if the employee returns the completed claim form.

If an employee alleges a work-related infection, a DWC-1 form should always be provided to the employee and immediately reported to the claims administrator within one working day. The claims administrator will then be able to investigate the claim.

What is the definition of "places of employment?"

• The legislation specifically defines "places of employment" as the building, store, facility, or agricultural field where an employee performs work at the employer's direction.
• "A specific place of employment" does not include the employee's home or residence, unless the employee provides home health care services to another individual at the employee's home or residence

What date should be used as the date of injury?

• The last date the employee performed labor or services at the employee's place of employment at the employer's direction prior to the positive test.

What is the investigative period to dispute the presumption?

• For peace officers, firefighters, rescue service coordinators and healthcare workers, the claims administrator has 30 days after the date the DWC-1 claim form is filed pursuant to section 5401 to dispute the presumption
• For all other employers, the claims administrator has 45 after the date the DWC-1 claim form is filed pursuant to section 5401 to dispute the presumption

What if a claim does not meet the presumption?

• The claims administrator has 90 days to investigate to accept or deny the claim.

What if an employee specifically tells you they were exposed to a family member that tested positive or attended a group function? Are these cases still presumed compensable?

• The presumption applies only if the employee tested positive within 14 days of performing labor at the specific place of employment on or after July 6, 2020 during an outbreak at the specific place of employment.

Why does the employer have the burden to report positive COVID-19 cases to claims administrators?

• The claims administrator needs to determine if each case meets the rebuttable presumption and monitor for an outbreak in the specific location where the employee worked.

Reporting Requirements: IMPORTANT! The information below only pertains to Reporting Requirements for All Other Employees

Non peace officers, healthcare facility workers, firefighters, rescue service coordinators and in-home support service employees

There are two different reporting requirements for employers where it is important to note the effective date that SB 1159 was signed into law on September 17, 2020.

For employees who test positive on or after 9/17/2020

An employer is required to report a positive COVID-19 test in writing to the claims administrator within three business days when the employer knows or reasonably should know that an employee tested positive for COVID-19.

All the following data are required:

1. The employer shall not provide any personally identifiable information of the employee who tested positive for COVID-19 unless the employee asserts the infection is work related or has filed a DWC-1 claim form.
2. The date that the employee tested positive (date the specimen was collected for testing).
3. 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.
4. 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.

Retroactive reporting requirement for employees who test positive on or after July 6, 2020 and BEFORE September 17, 2020:

Any employer who is aware of an employee testing positive during this retroactive period is required to report the positive tests to the claims administrator, in writing via electronic mail or facsimile, within 30 business days from September 17, 2020 (deadline October 29, 2020). The data must include the following:

• An employee has tested positive. Do not provide personally identifiable information regarding employee unless the employee claims the infection is work related.
• Date the employee tests positive (date the specimen was collected for testing).
• Specific address or addresses of the employee's specific place of employment during the 14-day period before the date of employee's positive test.
• Highest number of employees who reported to work at the employee's specific places of employment on any given day between July 6, 2020 and the effective date.

Common Questions about Reporting

Our company uses staffing agencies and temporary employees. Should temporary employees be counted when reporting the number of employees who work at the specific place of employment?

• This is not explicitly written in the legislation, however since the intent of the law is to determine how many people worked at that specific location, we recommend temporary employees be counted to determine if there is an outbreak.
• If a temporary employee tests positive during an outbreak at one of your locations and the presumption is met, a claim should be filed by the temporary placement agency under their policy. This particular scenario is not explicitly addressed in the legislation and may be subject to future litigation.

If an employee tests positive and does not allege it work related or says that the cause of the infection was from a spouse or friend, family gathering or other event, does it still need to be reported?

• It depends. If the employee solely works from home, then it does not meet the reporting requirement. If the employee worked at a place of employment at the employer's direction in the 14 days prior to the date of the positive test, then it needs to be reported within three business days to the claims administrator in writing by email or fax without any personal identifiable information unless the employee asserts the infection is work related or has filed a DWC-1 claim form.

If an employee voluntarily quarantines due to possible exposure, are we required to report this as an incident to the claims administrator?

• No. You are only required to report cases where an employee tests positive

If I have employees working remotely from home and an employee tests positive, are we required to report this to the claims administrator?

• No. An employee's home or residence is excluded from the reporting requirement. The reporting requirement is only for employees who work at one or more specific place of employment.
  • It is important to note that if an employee works from home AND at a specific place of employment or multiple places, employers need to determine if the employee worked at a specific location within the 14 days preceding the date that the employee tested positive and if so, it would meet the reporting requirement for the locations in which the employee worked.

What does it mean to report the highest number of employees who reported to work?

• For positive cases on or after September 17, 2020, an employer must report the highest number of employees who reported to work at the employee's specific work location in the 45-day period before the last day the employee worked.
• For example, SB 1159 became effective on 9/17/2020 and an employee tests positive on 10/2/2020, his last day worked will be considered 10/1/2020. The employer must now determine the highest number of employees who worked at that specific location during the preceding 45-day period (8/17/2020 through 10/1/2020). If 100 employees worked on 8/17/2020, 80 on 9/2/2020, and 150 employees on 10/1/2020, the highest number of employees to be reported is 150.
• For retroactive cases from July 6, 2020 and September 16, 2020, the employer must determine the highest number of employees on a given day from July 6, 2020 and 9/17/2020.With the effective date of 9/17/2020 and an employee tests positive on 8/1/2020, what is the highest number of employees that worked between the period of 7/6/2020 and 9/17/2020 on any given day? If you have 100 employees on 7/6/2020 and 150 employees who reported to work on 9/16/2020, the highest number of employees to be reported is 150.

This FAQ does not replace legal advice and we encourage you to consult with your claims administrator, workers' compensation attorney, or Woodruff Sawyer workers' compensation consultant with specific questions or scenarios.