On September 17, 2020, Governor Newsom signed SB 1159, which goes into effect immediately, expanding workers’ compensation coverage for employees who contract COVID-19 through the year 2022.
As previously reported, in May, Governor Newsom issued a workers’ compensation executive order that created a rebuttable presumption that workers who contracted COVID-19 while working outside of their homes did so during employment.
Usually, employees need to present evidence to establish their illness or injury is work-related to qualify for benefits. This presumption shifts the burden of proof to employers. In other words, if certain criteria are met, it’s automatically presumed that the employee contracted COVID-19 during employment, making them eligible for the full range of workers’ compensation benefits.
Newsom’ executive order expired on July 5, 2020, but the California Legislature took up the baton, introducing multiple bills over the summer to address workers’ compensation. SB 1159 was the only bill passed and signed into law.
SB 1159 has three key components employers should be aware of.
First, it codifies the Governor’s executive order establishing a rebuttable presumption of work-relatedness for workers who contracted COVID-19 between March 19, 2020, and July 5, 2020.
Next, the bill establishes a rebuttable presumption for first responders and health care personnel, including firefighters, peace officers, health facility employees that provide direct patient care, nurses, EMTs and in-home care providers. The law presumes covered workers contracted COVID-19 in the course of employment if the worker tests positive within 14 days of working at their place of employment, and the date worked was after July 6, 2020. The employer has 30 days to reject the claim.
Finally, the bill creates a presumption that applies to employers with five or more employees when there is a COVID-19 “outbreak” at the place of employment. Specifically, the new law presumes a worker who contracts COVID-19 did so while working if (1) they test positive within 14 days after working at their place of employment, (2) the date worked was after July 6, 2020, and (3) the positive test occurred during an “outbreak” at the employee’s place of employment. Employers have 45 days to reject a claim under this provision.
The new law defines “outbreak” as any the following:
- If the employer has 100 employees or fewer at a specific place of employment, four employees test positive for COVID-19 within 14 calendar days.
- If the employer has more than 100 employees at a specific place of employment, 4 percent of the number of employees test positive within 14 calendar days.
- Public authorities order the place of employment closed due to a risk of COVID-19 infection.
The new presumption goes into effect immediately and will apply until January 1, 2023.
Employers should become familiar with some new reporting requirements.
When an employer with five or more employees “knows or reasonably should know” that an employee tests positive for COVID-19, the employer must inform their workers’ compensation carrier within three business days of the following:
- An employee tested positive,
- The date when the employee tested positive,
- The address of the employee’s worksite, and
- The highest number of employees who reported to the worksite within 45 days of when the employee last worked.
Additionally, any employer who is aware of any employee testing positive on or after July 6, 2020, but before the law went into effect on September 17, 2020, must report the employee information described above to their claims administrator within thirty days.
Since this bill went into effect immediately, employers should consult with their legal counsel and workers’ compensation administrators on how to best implement compliance procedures quickly. Additionally, employers should continue to follow federal, state and local health mandates and guidelines to ensure they do everything they can to mitigate the spread of COVID-19, keep employees healthy and prevent outbreaks in the workplace.