A little over two months ago, Governor Newsom’s executive order that established a rebuttable presumption of industrial causation for workers in California who contracted COVID-19 expired. At that time, Heffernan’s Consulting Division shared with you our thoughts on pending legislation (SB 1159) meant to address the expiring executive order and how employers should navigate the COVID claims that would occur after the date of expiration.
Governor Newsom is now expected to sign that SB 1159 into law by the end of September when he must decide to sign or veto the bill. Below, we address some major takeaways from the bill as it is written and primed for signature.
- As expected, the bill codifies the executive order but does NOT extend the order as written beyond its original expiration date of July 5, 2020 except for specific instances.
- SB 1159 has a major impact on firefighters, peace officers, fire and rescue service coordinators, and ‘home health agency direct patient care’ employees and In-Home Supportive Service employees providing services outside of their own home. The bill establishes a rebuttable presumption of industrial causation for those employees and is effective from July 6, 2020 through January 1, 2023. The rebuttable presumption in this instance comes with a 30-day investigation window and applies if:
a. The employee tests positive within 14 days after last performing work at the place of business at employer’s direction
- The bill also applies to ALL OTHER employees and is also valid from July 6, 2020 through January 1, 2023. However, the rebuttable presumption in these cases comes with a 45-day investigation window and some limitations.
To qualify as an injury under this section, the employee must test positive “during an outbreak” at the specific place of employment and BOTH:
- Test positive within 14 days of last performing labor at the specific place of the employment AND
- This employment performance was on or after July 6, 2020.
For purposes of this bill, an outbreak is defined as: If, within 14 calendar days of one of the following occurs at the specific place of employment:
– If employer has 100 or fewer employees at that specific place of employment, four (4) employees test positive for COVID-19
– If more than 100 employees at that specific place of employment, 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.
The passing of this bill will create affirmative duties/responsibilities for employers and claims administrators. It is important to know the following and encourage our clients to remain vigilant in both reporting and tracking of COVID claims.
- The employer has a new affirmative duty to report to the claims administrator. Once the employer “knows or reasonably should know” an employee tested positive for COVID-19, the employer MUST Report to the claims administrator within 3 business days ALL of the following:
a. An employee tested positive (not identifying employee by name unless employee asserts the infection was work related)
b. Date employee tested positive (=date specimen was collected)
c. Address of specific place of employment during the 14-day period preceding the positive test.
d. Highest number of employees who reported to work at the specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.
e. False reporting will result in civil penalties.
- The claims administrator has a new affirmative duty to use the above data to determine if an ‘outbreak’ occurred for purposes of administering a claim.
As always, if you have any questions, the Consulting Division is here to help. We recommend that all employers:
– Continue to report COVID claims as quickly as possible to their carriers.
– Keep detailed logs and tracking of all COVID cases in their workforce.
We have programs that can assist our clients with these tasks. Also, our team remains on a task force coordinated by, and with, the largest work comp defense law firms in the state in order to remain on top of the changing landscape. More information will be shared as it becomes relevant. Please reach out to your closest team member for assistance.
Dan Nevarez, Esq., CAWC