STATE LEGISLATURE EXTENDS AND EXPANDS COVID-19 PRESUMPTION
GMK ALERT – Today’s News You Can Use
ISSUE DATE: Wednesday, September 2, 2020
IN THIS ALERT: STATE LEGISLATURE EXTENDS AND EXPANDS COVID-19 PRESUMPTION
The California Legislature has set forth three COVID-19 presumption bills, with AB196 and AB 664 failing to be passed. SB1159 has been sent to Governor Newsom for signature. The bill codifies Executive Order N-62-20 and establishes two rebuttable presumptions for employees contracting COVID-19:
Frontline workers: peace officers, firefighters, healthcare providers, homecare workers, and IHSS workers.
General presumption for employees who contract COVID-19 in the midst of a workplace outbreak.
LABOR CODE SECTION 3212.86 – Expired as of July 5, 2020
Executive Order N-62-20 is codified by newly enacted Labor Code section 3212.86. The Order created a temporary rebuttable presumption for COVID-19 claims made as of March 19, 2020 through July 5, 2020.
Per the Executive Order, now Labor Code section 3212.86, any COVID-19 related illness is rebuttably presumed compensable if it meets the following requirements:
The employee tested positive for COVID-19 within 14 days of working at their place of employment.
The employee was working on or after March 19, 2020.
The employee was not working from home during that time period.
The diagnosis was made by a licensed California physician.
The Order, now the new statute, shortened the investigation period under Labor Code section 5402 from 90 days to 30 days.
The Order, now the new statute, entitled employees all workers’ compensation benefits including full hospital, surgical, medical treatment, disability indemnity, and death benefits, but an employee must exhaust any sick leave benefits available in response to COVID-19 prior to receipt of Temporary Disability or Labor Code section 4850 benefits.
Apportionment pursuant to Labor Code section 4663 and 4664 is applicable to determinations of permanent disability.
LABOR CODE SECTION 3212.87
Labor Code section 3212.87 applies to claims on or after July 6, 2020, and creates a rebuttable presumption that a peace officers, firefighters, and certain health care employees who contracted COVID-19 were infected with the virus via a workplace exposure. The section provides the presumption may be controverted by other evidence, but it does not specify what evidence may be used to rebut the presumption. The presumption extends 14 days from termination of service commencing with the last day actually worked.
To qualify for the presumption, the employee must meet the following criteria:
The employee must fall into the protected class as a peace officer, firefighter, specified frontline employee, or certain health care employee. Employees of health facilities, other than those who provide direct patient care, shall not be entitled to the presumption if the employer can demonstrate that the employee did not have contact with a healthcare facility patient within the prior 14 days who tested positive for COVID-19. A provider of in-home support services will qualify for the presumption when they provide supportive services outside their own home or residence.
The employee was not working from home.
The employee must test positive for COVID-19 within 14 days after a day that the employee performed labor or services.
The day referenced on which the employee performed labor or services was on or after July 6, 2020. The date of injury shall be the last date the employee performed labor or services prior to the positive test.
This section maintains the shortened investigation period under Labor Code section 5402 from 90 days to 30 days
As with Labor Code section 3212.86, the employee is entitled to all workers’ compensation benefits including full hospital, surgical, medical treatment, disability indemnity, and death benefits. Prior to receiving Temporary Disability or Labor Code section 4850 benefits, the employee must exhaust any sick leave benefits available in response to COVID-19.
Apportionment pursuant to Labor Code section 4663 and 4664 is applicable to determinations of permanent disability.
This section shall remain in effect until January 1, 2023.
LABOR CODE SECTION 3212.88
Labor Code section 3212.88 applies to employees not listed in Labor Code section 3212.87. It establishes a rebuttable presumption of compensability for employees who contract COVID-19 during employment by any employer that experiences an “outbreak” of COVID-19 cases at a particular work location where an employer has 5 or more employees.
An “outbreak” is defined as follows:
If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19.
If the employer has more than 100 employees at a specific place of employment, 4% of the number of employees who reported to the specific place of employment test positive for COVID-19.
A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection of COVID-19.
The presumption arises where:
The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services.
The employee was not working from home.
The day the employee last performed services is on or after July 6, 2020.
The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.
A claim is not part of an outbreak if it occurs during a continuous 14-day period where the requisite number of positive tests have not been met. The presumption may be rebutted by other evidence which includes, but is not limited to, measures the employer has in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s non-occupational risks of a COVID-19 infection.
In this section, the investigation period under Labor Code section 5402 is reduced from 90 days to 45 days whereas previously the time period was 30 days. If not rejected or denied within 45 days, it is presumed compensable.
The employee is entitled to all workers’ compensation benefits including full hospital, surgical, medical treatment, disability indemnity, and death benefits. Prior to receiving Temporary Disability or Labor Code section 4850 benefits, the employee must exhaust any sick leave benefits available in response to COVID-19.
Duties of the Employer:
When an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer SHALL report to their claims administrator, in writing via electronic mail or facsimile, within three business days all of the following:
An employee has tested positive. For purposes of this reporting, the employer shall not provide any personally identifiable information regarding the employee who tested positive for COVID-19 unless the employee asserts the infection is work related or has filed a claim form pursuant to Section 5401.
The date the employee tests positive, which is the date the specimen was collected for testing.
The specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test.
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.
Apportionment pursuant to Labor Code section 4663 and 4664 is applicable to determinations of permanent disability.
This section shall remain in effect until January 1, 2023.
WHAT THIS MEANS FOR YOU
SB 1159 leaves open a multitude of avenues to rebut the COVID-19 presumptions and extends the investigation period for non-frontline personnel from 30 days to 45 days allowing for a longer discovery period.
Discovery into alleged claims including workplace measures to prevent exposure and an employee’s non-occupational risks of COVID-19 must be fully explored during your initial contact with the insured.
Because there is no way to predict when an employee might report a positive COVID-19 test, employers should endeavor to vigilantly maintain daily records of which employees have been working from home, including those who work partly from home and partly at their place(s) of employment.
Records should be maintained on a daily basis of the actual number of employees that reported to work at the affected employee’s place of business and the specific number of employees that test positive for COVID-19.
There should be no delay in proper and timely reporting to their claims administrators of employees that test positive for COVID-19 including the date the employee tested positive. The rule regarding non-disclosure of personally identifiable information regarding the employee must be strictly followed if the employee has not asserted the virus is work related. It is recommended that employers work with their claims administrator to assign an identifier to track that individual that has not asserted a work-related claim.
Jessica Tyndall – San Luis Obispo
Alissa Tobin – Woodland Hills