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September 29th, 2020
California Codifies When COVID-19 Illness Will Be Presumed Job-Related for Workers’ Compensation Purposes
Here’s a rundown of who is covered under SB 1159 -- an important new law that all California employers need to understand.
Background. In May 2020, as part of the state’s “Expanded Workforce Safety Net”, Governor Newsom issued an Executive Order creating a rebuttable presumption that in certain circumstances an employee’s COVID-19 related illness arose out of the course of employment and, as a result, is covered by workers’ compensation benefits. That Executive Order expired on July 6, 2020.
Who is covered? SB 1159, enacted September 17th, picks up where the Executive Order left off. The new law specifically applies this rebuttable presumption to two categories of workers in the state. The first category is First Responders and Health Care Workers and includes firefighters, certain peace officers, paramedics and emergency medical technicians, and employees of designated health facilities.
The second category of workers covered by SB 1159 are those that are protected by the “Outbreak Presumption” which is triggered when employees whose employers have 5 or more employees test positive for COVID-19 during an outbreak at their workplace. An “Outbreak” occurs within 14 days of one of the following occurring at a workplace:
- For employers who have 100 or fewer employees at a workplace, 4 employees test positive for COVID-19.
- For employers who have more than 100 employees at a workplace, 4% of the employees who report to that workplace have tested positive for COVID-19.
- A specific workplace is ordered to close by a local health department, the state department of public health, CalOsha, or a school superintendent due to a risk of infection of COVID-19.
Similar to its Executive Order predecessor, a “place of employment” for SB 1159 does not include an employee’s residence; employees must work at the place of employment in response to their employer’s direction. In addition, employees must exhaust all COVID-related sick leave benefits in order to be eligible for workers’ compensation benefits which include “full hospital, surgical, medical treatment, disability indemnity and death benefits.” New additions to this law include a specification that an acceptable “test” is a PCR (Polymerase Chain Reaction) test or other test approved by the FDA and exclude antibody or serological testing to establish an injury.
Reporting requirement. The new law also includes a strict reporting requirement. Under the law, all employers who know (or reasonably should know) that an employee has tested positive for COVID-19 must report to their workers’ compensation claim administrator within 3 business days the following information :
- A written statement that an employee has tested positive for COVID-19. Employers are cautioned not to provide identifying information of the employee unless the employee claims the infection is work-related or has already filed a claim for benefits;
- The date the employee tested positive;
- The address of the employee’s specific place of employment during the 14 days preceding the positive test result; and
- The highest number of employees that worked at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked there.
Penalties. An employer that provides false or misleading information or fails to make a required report at all can be subject to a civil penalty up to $10,000.00.
If you have questions about SB 1159, or about other employment law matters, please contact Tricia Legittino at (310) 579-9632 or firstname.lastname@example.org, or any other member of the Frankfurt Kurnit Employment Compliance, Training & Litigation Group.
Other Employment Law Alerts
Ten Employment Law Developments Every California Employer Should Know for 2021
As we all happily bid 2020 “good riddance” and enter 2021 with much-needed optimism, there are a host of recent employment laws, some in response to the COVID-19 Pandemic, that California employers need to comply with. Read more.
January 5 2021
AICP and Unions Agree on Updated COVID-19 Commercial Production Guidelines
On December 15, 2020, the COVID-19 Commercial Production Safety and Training Protocol Agreement between the Association of Independent Commercial Producers (“AICP”) and several unions including the DGA and IATSE, went into effect along with an updated version of AICP’s COVID-19 Guidelines (also known as “Appendix A”). Read more.
December 22 2020
Can Employers Require Employees to Receive a COVID-19 Vaccination?
On December 11, 2020, the U.S. Food and Drug Administration granted Pfizer an Emergency Use Authorization for its COVID-19 vaccination. While this and other vaccine news is encouraging, it raises a difficult question: Can employers require employees to get the vaccine before returning to the workplace? Read more.
December 16 2020