SB1159 (WC)
303043 California Extends Workers’ Comp Presumption
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On September 17, 2020 and as expected, Governor Newsom signed SB1159 into law. This law took effect immediately and comes in three parts:
Part 1
Codifies the Executive Order that was in effect through July 5, 2020. Although the bill did NOT extend the provisions of the Executive Order beyond July 5, 2020, it did allow provisions to be extended through January 1, 2023 - limited to injuries between March 19, 2020 and July 5, 2020 only.
It did allow for some small changes to the Order – as follows:
- An Employee must test positive or be diagnosed with COVID-19 within 14 days after employee performed services at their place of employment at the employers direction between March 19, 2020 and July 5, 2020. Note: the date of injury is considered to be the last date on which the employee performed services for the employer.
- If there was a diagnosis within 14 days initially, the diagnosis must have been done by a licensed physician and or surgeon holding an MD or DO degree or a state licensed PA or Nurse Practitioner acting under the review/supervision of a physician or surgeon within that authorized scope of practice and followed up with a serologic text (antibody test) within 30 days.
Part 2
Firefighters, peace officers, fire and rescue service coordinators and “home health agency direct patient care”, custodial employees in contact with COVID-19 patients who work at a health facility and In-Home Supportive Service employees providing services outside of their own home and is effective from July 6, 2020 through January 1, 2023.
The 30-day rebuttable presumption applies to these employees if they test positive within 14 days after last performing labor at place of business at employer’s direction or on or after July 6, 2020.
- Test means PCR test (or other comparably accepted FDA test) to prove presence of viral RNA (this does not include serologic test that is required within first part of the bill and effective through July 5, 2020 only).
- The date of injury is the last date the employee performed labor or services at the employee’s place of employment at the employers direction prior to the test.
- Eligible for Temporary Disability and 4850 benefits after standard leave benefits are exhausted first.
- Presumption extended for 14 days following last actually worked day following termination of employee.
For Direct Patient Home Health Care employees, the presumption shall not apply if the employer can show the employee did not have contact with a facility patient within the last 14 days prior to testing positive for COVID-19.
Part 3
Applies to all employees, EXCEPT those covered in Part 2 above. This section dealing with an ‘outbreak’ is the only section that covers ALL employees from July 6, 2020 to January 1, 2023, other than firefighters, peace officers, direct patient health care workers and In Home Services as covered in Part 2 above. For injuries on or after July 6, 2020, the provisions of the original Executive Order no longer exist.
For a 45-day rebuttable presumed injury to occur, the following is relevant: Presumption effective July 6, 2020 thru January 1, 2023. It also applies to all ‘pending matters’.
- The date of injury is considered the last date employee performed services at the employee’s specific place of employment on or after July 6, 2020.
- Test means PCR test (or other comparably acceptable FDA test) to prove presence of viral RNA. (This test does NOT include serologic test that is required within first part of the bill and effective through July 5, 2020 only.)
- ‘Specific Place of Employment’ means the building, store, facility or agricultural field where the employee performs work at the employer’s direction.
- Does not include home or residence, unless the employee provides in home health care services to another person at the employee’s home/residence.
- In order to qualify as an injury, the employee must test positive ‘during an outbreak’ at the specific place of employment AND:
- Test positive within 14 days of performing labor at the specific place of employment AND
- Employment performance was on or after July 6, 2020.
- Outbreak must occur at a specific place of employment with 5 or more employees.
- Changes the presumption to 45 days from date claim form is filed (versus 30 days in the Executive Order).
- Specific reasons allowed to rebut the presumption include, but are not limited to:
- Evidence of measures to reduce potential transmission of COVID-19 in the place of employment and
- Evidence of an employee’s non-occupational risks of COVID-19 infection.
- Possible examples include risks of workplace infection that are not particular to or characteristic of the applicant’s specific employment or evidence of a known or likely non-industrial cause, such as an infected family member or housemate.
- Presumption extended for 14 days following last actually worked day following termination of employee.
EMPLOYER’S AFFIRMATIVE DUTY
The employer has a new affirmative duty to report to the claims administrator for injuries on or after September 17, 2020. 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:
- An employee tested positive (not identifying employee by name unless employee asserts the infection was work related)
- The date the employee tested positive (date specimen was collected)
- The address of the specific place of employment during the 14-day period preceding the positive test.
- 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.
- False reporting will result in civil penalties.
- For injury dates between July 6, 2020 and September 17, 2020, the employer must report the below by October 29, 2020:
- An employee tested positive (not identifying employee by name unless employee asserts the infection was work related)
- Date employee tested positive (=date specimen was collected)
- The address of the specific place of employment during the 14-day period preceding the positive test.
- The employer must calculate the highest number of employees who reported to work at each specific place of employment between July 6, 2020 and September 17, 2020.
- False reporting will result in civil penalties.
‘OUTBREAK’
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. Outbreak is defined as:
- 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.
- If a specific place of employment is ordered closed by local, state or OSHA or school superintendent, then an ‘outbreak’ occurred.
WORKERS’ COMPENSATION BENEFITS
The same benefits afforded the employees in the Executive Order are given to employees who meet the burden in this legislation.
CONCLUSION & RECOMMENDATIONS
While this bill moves the burden of proof to the employee to prove industrial COVID-19 outbreak exposure on or after July 6, 2020, it leaves the onus on the employer and claims administrator to do the legwork for the employee and perform discovery and investigation steps necessary for the employee to meet that burden.
Another burden an employer will have, since this bill is retroactive, is for employers to provide prior data required of them to their Claims Administrator no later than October 29, 2020.
HIB Consulting is working closely with all major workers’ compensation carriers to ensure that our clients are following their COVID-19 reporting requirements, both retroactively as well as going forward, to their workers’ compensation claims administrator. As we move forward, we will be posting carrier notifications here for our clients use.
Carrier Specific Reporting Requirements