Important California Laws To Know – SB 1159

Another issue related to COVID-19 that moved to the forefront of the agenda of California lawmakers in the spring of 2020 was clarifying the qualification and eligibility for workers’ compensation benefits for employees who may have contracted COVID-19 on the job.

In May of 2020, less than two months after the outbreak of the coronavirus, Governor Gavin Newsom issued an executive order that created a rebuttable presumption that a COVID-19 infection occurring at work was a work-related illness if an employee received a positive test for COVID-19 or a doctor’s diagnosis of COVID-19 followed by a positive COVID-19 test within 30 days of the initial diagnosis and the employee performed labor at the place of employment (not while telecommuting) at the employer’s direction on or after March 19, 2020.

SB 1159 codifies this presumption while providing further rebuttable presumptions that an employee’s illness related to the coronavirus is an occupational injury and therefore eligible for workers’ compensation benefits if specified criteria are met for two categories of employees who get sick or injured due to COVID-19 on or after July 6, 2020.

The provisions of the new Labor Code § 3212.87 create a presumption of compensable illness to certain frontline healthcare workers and first responders such as firefighters, peace officers, fire and rescue coordinators, health facility workers who provide direct patient care or are custodial workers at the health facility. It also applies to registered nurses, medical technicians, providers of in-home supportive services, and employees who provide direct patient care for a home health agency who have tested positive for COVID-19 within 14 days after a day that they performed labor or services at their employee’s place of employment at their employer’s direction, which is also known as the First Responders and Health Care Workers presumption.

For all other types of workers, new Labor Code § 3212.88 provides that any worker who suffers an illness or death related to COVID-19 after July 6, 2020, is presumed to have suffered an occupational injury, and is therefore entitled to workers’ compensation insurance benefits (i.e., the Outbreak presumption) if all of the following circumstances are present:

• The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employer’s direction at the employee’s “specific place of employment.”
• The work was performed on or after July 6, 2020.
• The employee’s positive test occurred during a period of an “outbreak” at the employee’s “specific place of employment.”

 

SB 1159 defines an “outbreak” differently from AB 685. Under SB 1159, an outbreak is defined to have occurred if within a 14-calendar day period one of the following events has happened:

• For employers of 100 employees or less at a specific place of employment, four employees tested positive for COVID-19.
• For employers of more than 100 employees at a specific place of employment, 4% of the number of employees who reported to the specific place of employment during the 14-day period tested positive for COVID-19.
• A specific place of employment 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 presumptions created by SB 1159 are “disputable” by an employer and the burden may be overcome by evidence of employer measures in place to reduce the potential transmission of COVID-19 in the employee’s place of employment. Also, evidence of the presence of other non-occupational risks that could have caused the employee’s COVID-19 infection may overcome the presumption.

Employers have up to 30 days to decide whether to accept or deny the claim for workers’ compensation benefits.  If the employer fails to reject the claim within that 30-day period, the injury or illness is presumed compensable, and the employer may then rebut the presumption only with evidence it first discovered after the expiration of the 30-day period. The claim-rejection period is extended to 45 days for employees who are eligible for the Outbreak presumption.

If either presumption is not successfully disputed, the employee is entitled to “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” An employee who has paid sick leave benefits for COVID-19, however, must exhaust them before any workers’ compensation temporary disability or similar benefits are payable.

SB 1159 also creates new reporting requirements for employers based on the Outbreak presumption. When an employer “knows or reasonably should know that an employee has tested positive for COVID-19,” the employer must report certain, specific information to its workers’ compensation claims administrator within three (3) business days.

This new law took effect on September 17, 2020, and remains in effect through January 1, 2023.

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