September 17, 2020 Governor Newsom signed into law Senate Bill 1159 that creates new framework for COVID-19 related workers’ compensation claims and as emergency legislation, the bill takes effect the day it is signed. The bill states that a ‘disputable presumption’ exists for an employee that suffer illness or death resulting from COVID-19 on or after July 6, 2020 through January 1, 2023. Although this increases the burden of reporting on the employer, it is important to note that this is not an absolute presumption but rather can be disputed. This is why it is important for employers and claim’s administrators to thoroughly and quickly investigate each positive test and obtain all the evidence available to protect the company and its employees.
The presumption in the bill applies only to employees that have illness or death as a result of COVID-19 and the following conditions exist-
· Employee works for an organization with five or more employees;
· Employee has a positive test results within 14 days after the employee performed labor or services at the employee’s ‘specific place of employment’ at the direction of the employer;
· Employee performed labor or services at their place of employment on or after July 6, 2020 and this was the last date the employee performed these services under the employer’s direction before the positive test results; and
· Employee tests positive during an outbreak at the employee’s specific employment site.
A ‘specific place of employment’ as listed under SB 1159 does not include an employee’s home or residence unless the employee performs home health care service at a home or residence. It does however include a “building, store, facility, or agricultural field where an employee performs work at the employer’s direction.”
If applicable, under SB 1159 the employee is entitled to “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” It is important to note that the Department of Industrial Relations has waived death benefit entitlement under Labor Code Section 4706.5 if the deceased employee did not have any dependents.
Much like the May 6th executive order if an employee is eligible for paid sick leave benefits, specifically those created in response to COVID-19 (FFCRA), these benefits must be fully exhausted before using any temporary disability benefits. If the employee does not have any leave available, then the employee is entitled to temporary disability benefits without a waiting period.
Employee eligibility for temporary disability benefits is dependent upon the date that the employee tested positive or was diagnosed with COVID-19.
If the positive result was prior to May 6, 2020:
· Employee must have obtained a certification from a licensed physician no later than May 21, 2020 documenting the time for which the employee was temporarily disabled and unable to work and this must have been re-certified for disability every 15 days thereafter for the first 45 days following the diagnosis
If the positive result was on or after May 6, 2020:
· Employee must be certified for temporary disability by a licensed physician within 15 days of the initial diagnosis and then re-certified every 15 days thereafter for the first 45 days following the diagnosis
Employer Reporting Requirements
If an employer “knows or reasonably should know that an employee has tested positive for COVID-19” the employer is required to report to their claim’s administrator, the information below within three business days via email or fax:
· Notification that an employee has tested positive. The employer is not permitted to provide any personally identifiable information regarding the positive employee unless the employee claims that the infection or positive result is work-related or they have filed a claim pursuant to Labor Code Section 5401;
· The date the specimen was collected for testing that resulted in a positive test;
· The address(es) of the specific place of work that the employee provided labor or service in during the 14-day period preceding the date of the positive test; and
· The highest number of additional employees that worked at the specific place of work that was listed above in the 45-days preceding the last day the employee worked at each site after the positive test result.
If the positive test results is after July 6, 2020 the employer must report the top three bullets within 30 business days of the date the legislation took effect and the requirement for highest number of employees must be reported by any work date between July 6thand the date that SB 1159 takes effect.
According to Labor Code Section 3212.88, an outbreak exists if within calendar days one of the following occurs at a specific place of employment:
· Employers with 100 employees or less at a specific place of employment and at least 4 employees test positive for COVID-19;
· Employers with 100 employees or more at a specific place of employment (reporting to the site) and at least 4% of the employee population test positive for COVID-19; or
· An order to close the specific place of employment is issued by a local health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to risk of infection with COVID-19.
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