Published Feb 03, 2021
California’s SB1159 created a law addressing employees who get sick or injured due to COVID-19 on or after July 6, 2020. The law creates a presumption that any COVID-19 related illness of an employee arose out of and in the course of employment for purposes of awarding workers’ compensation benefits if all of the following requirements were satisfied:
(a) the employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;
(b) the day referenced in paragraph (a) on which the employee performed labor/services was on or after March 19, 2020;
(c) the employee’s place of employment was not the employee’s home; and
(d) if the employee was only diagnosed and not tested, as provided in paragraph (a) above, the diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.
This bill also creates a new rebuttable presumption — which relates back to cases of workers’ compensation coverage if there was a COVID-19 “outbreak” at the employee’s place of employment. Qualifications of an outbreak depends on the size of the employer. An outbreak occurs when: (1) if the employer has 100 employees or fewer: four employees test positive for COVID-19 within 14 calendar days; (2) if the employer has more than 100 employees: 4% of the number of employees test positive for COVID-19 within 14 calendar days; or (3) the place of employment is ordered closed by public authorities due to a risk of infection with COVID-19. This presumption relates back to cases arising on or after July 6, 2020.
Under this law, employers with five or more employees must report certain information to their workers’ compensation carrier once they know or reasonably should know an employee has tested positive for COVID-19, assuming the employee has been onsite at an employer’s location in the 14 days prior to the employee testing positive (which is the day the employee took the test, not when the employee received the results). This reporting requirement applies regardless of whether the employer believes the employee contracted COVID-19 at work.
For any positive test occurring on or after September 17, 2020, an employer must, within three business days of learning that an employee has tested positive for COVID-19, report to its workers’ compensation carrier in writing, by email or by fax, the following information:
- an employee tested positive for COVID-19 (but without providing any personally identifiable information regarding the employee unless the employee asserts the infection is work-related or has filed a workers’ compensation claim);
- the date the employee tests positive, which is the date the specimen was collected for testing; the specific address(es) of the employee’s “specific place of employment” during the 14-day period preceding the date of the employee’s positive test; and
- 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 person’s specific place of employment is defined as the building or facility where the employee performs work at the employer’s direction and does not include the employee’s home or residence.
The law also places a retroactive reporting requirement on employers. Employers must provide a similar written report to their workers’ compensation carrier for any positive test that occurred between July 6, 2020, and September 16, 2020. That report should have be made to the carrier by October 17, 2020. The written report must include the same information, except instead of reporting the information in item 4 above, the employer must calculate the highest number of employees who reported to work at the specific place of employment between July 6 and September 17.
Employers can be fined up to $10,000 for failing to report the required information or providing false or misleading information.
This bill adds Section 77.8 to the Labor Code and repeals Sections 3212.86, 3212.87, and 3212.88 of the Labor Code.
For more information, please contact the CSBC HR & Church Compliance Ministry by calling 559.256.0858 or by emailing hrcc@csbc.com.