Senate Bill 1159: Reporting and Claims for Employees with COVID-19

On September 1, 2020, the California Legislature passed Senate Bill 1159 and the bill is now pending approval/veto by Governor Newsom, who has until September 30th to make his decision. It is expected that the governor will approve the bill. Read on for a summary of the bill and how this will impact reporting and claims for employers.

Three Rebuttable Presumption Labor Codes

The bill establishes three rebuttable presumption labor codes for employees contracting COVID-19 and puts substantial reporting requirement burdens on employers and claim administrators:

1. LC 3212.86: Retroactively Codifies Governor Newsom's May 6, 2020 Executive Order—only for dates of injury from 3/19/2020–7/5/2020, with three minor clarifications/changes to the original Executive Order:

• The Date of Injury (DOI) is to be considered the LAST date on which the employee performed services at the place of employment.
• A diagnosis that is provided within 14 days of the DOI must be done by a licensed physician or surgeon holding an MD or DO degree, or a state licensed Physician's Assistant or Nurse Practitioner acting under review/supervision.
• The diagnosis must be confirmed by a COVID-19 test (PCR test), or a serologic test (aka, an antibody test), within 30 days of the date of the diagnosis.

2. LC 3212.87: Applies only for: Frontline workers: peace officers, firefighters, healthcare providers, homecare workers, and IHSS workers—effective 7/6/2020–1/1/2023.

• COVID-19 claims will be rebuttably presumed compensable for these workers if:
  • 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 (not at their home or residence) at the employer's direction.
  • The "test" is a PCR (Polymerase Chain Reaction) test approved for use to detect the presence of viral RNA. (Note: approved testing does not include "serologic testing," aka, antibody testing).
  • Presumption applies for 14 days after last date worked, even if employee has been terminated.
• 30 Day Compensability Decision: If a claim is not rejected within 30 days after the date the claim form is filed, the COVID-19 claim is presumed compensable.
• Specific To Home Health Care Employees: Presumption shall not apply if the employer can establish that the employee did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19.
  • Temporary Disability (TD) benefits and 4850 benefits will not apply until the employee has exhausted any paid sick leave benefits specifically designated in response to COVID-19. (Note: If the employer does not have paid sick leave benefits designated in response to COVID-19, then TD and section 4850 benefits will apply from the date of disability).

3. LC 3212.88: For all other employees not outlined in #2—effective from 7/6/2020–1/1/2023 COVID-19 claims will be rebuttably presumed compensable only during a period that's being defined as an Outbreak.

• "Outbreak" is defined if within a 14-calendar day period, one of the following occurs:
  • An employer has 100 or fewer employees at that specific place of employment and at least four (4) employees test positive for COVID-19.
  • An employer has more than 100 employees at that specific place of employment and at least 4% of the number of employees who reported to the specific place of employment, test positive for COVID-19.
  • If the employee works at multiple places at the direction of his/her employer, then the specific location of where an outbreak occurred within 14 days of the positive test is to be considered the “'outbreak”' location and all data from that particular location needs to be analyzed to determine if an outbreak occurred.
• COVID-19 rebuttably presumed compensable for workers during an outbreak if:
  • An employee tests positive for COVID-19 within 14 days after a day that employee performed labor or services at the employee's "specific place of employment" at the employer's direction, and the positive test occurred during a one-calendar day period of an outbreak as previously defined.

Note: An "Employee's Specific Place of Employment" is defined as the building, store, facility, or agricultural field where the employee performs work, not including one's home or residence (unless the employee provides home health care services to another person at the employee's home or residence).

• The "Test" is a PCR (Polymerase Chain Reaction) test approved for use to detect the presence of viral RNA. (Note: approved testing does not include "serologic testing," aka, antibody testing).
• Presumption applies for 14 days after last date worked, even if employee has been terminated.
• 45 Day Compensability Decision - If a claim is not rejected within 45 days after the date the claim form is filed, the COVID-19 claim is presumed compensable.

Note: if the definition of an Outbreak is not met and there are still employees who test positive for COVID-19, the presumption and rules outlined above do not apply. In this scenario, the standard rules around establishing compensability will apply, meaning the employer and claim administrator have 90 days in which to conduct their investigation from the date the DWC-1 claim form is filed.

What this Means for Employers Reporting and Filing Claims

Employer Reporting Requirements

(on or after the effective date of the legislation)

Regardless of whether an employee who tests positive for COVID-19 files a claim or not, employers need to keep records for a possible COVID-19 outbreak. When the employer knows or reasonably should know that an employee tested positive for COVID-19, they must report all of the following data to their claim administrator within three business days (in writing via electronic mail or fax):

1. 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 Section 5401.
2. The date that the employee tests positive, which is the 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 Requirements

(on or after July 6, 2020 and prior to the effective date of the legislation)

For the claims administrator to determine if an outbreak occurred retroactively between July 6, 2020 and the effective date of the legislation, the employer must report any employees who tested positive for COVID-19 within 30 business days of the effective date of the legislation. The report must be made in writing via electronic mail or fax and include all of the following:

1. 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 Section 5401.
2. The date that the employee tests positive, which is the 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 employer shall instead report the highest number of employees who reported to work at each of the employee's specific places of employment on any given workday between July 6, 2020, and the effective date of this section.

Penalties for Failure to Report Employees with COVID-19

Where an employer fails to submit timely or intentionally submits false or misleading information, they shall be subject to a $10,000 civil penalty.

Our Advice: Be Diligent on Record-Keeping

We recommend employers maintain daily records that are able to show which employees worked at specific locations on given days, or that may be working from home, including any employees that may work from home on a part-time basis and go into their place(s) of employment the remainder of the work week. Employers will also need to keep a log of the actual number of employees that reported to work at the affected employee's place of employment and the specific number of employees that test positive for COVID-19.

Any time an employee believes the infection is work-related and requests to file a workers' compensation claim, a DWC-1 claim form should be provided to the employee and the claim should be reported to the carrier regardless of whether there is an "outbreak" or potential presumption. The carrier will assess whether the presumption applies or whether the general compensability rules apply.

You can direct any related to SB1159 to your Woodruff Sawyer team.