UN-MUDDYING THE COVID-19 PRESUMPTIONS: FAQS FOR ADMINISTERING COVID-19 CLAIMS
GMK ALERT – Today’s News You Can Use
ISSUE DATE: Thursday, December 17, 2020
IN THIS ALERT: UN-MUDDYING THE COVID-19 PRESUMPTIONS: FAQS FOR ADMINISTERING COVID-19 CLAIMS
What does SB 1159 do?
SB 1159 codifies Executive Order N-62-20 and establishes two additional rebuttable presumptions for employees contracting COVID-19:
1. Frontline workers: peace officers, firefighters, healthcare providers, homecare workers, and IHSS workers.
2. General presumption for employees who contract COVID-19 in the midst of a workplace outbreak.
What is Executive Order N-62-20?
Executive Order N-62-20 is codified by Labor Code section 3212.86, which creates a temporary rebuttable presumption for COVID-19 claims made as of March 19, 2020 through July 5, 2020. Any COVID-19 related illness is rebuttably presumed compensable if it meets the following requirements:
1. The employee tested positive for COVID-19 within 14 days of working at their place of employment.
2. The employee was working on or after March 19, 2020.
3. The employee was not working from home during that time period.
4. The diagnosis was made by a licensed physician.
What is the length of the investigation period for COVID-19 claims made from 3/19/20 – 7/5/20 and when does it start?
The investigation period under Labor Code section 5402 has been shortened from 90 days to 30 days. The investigation period commences when the employee files a claim form or when the employer has sufficient knowledge of a claim to make an investigation into the facts.
What is the presumption for frontline workers (Labor Code section 3212.87)?
For claims made on or after July 6, 2020, peace officers, firefighters, and certain health care workers who contracted COVID-19 are presumed to have been infected with the virus via a workplace exposure. The presumption may be rebutted by other evidence.
Who qualifies for the rebuttable presumption for frontline workers under Labor Code section 3212.87?
To qualify for the presumption the employee must meet the following criteria:
1. 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 support services outside their own home or residence.
2. The employee was not working from home.
3. The employee tested positive for COVID-19 within 14 days after a day that the employee performed labor or services.
4. The day 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.
What is the investigation period for claims involving frontline workers and when does it start?
The investigation period under Labor Code section 3212.87 is 30 days. The investigation period commences when the employee files a claim form or when the employer has knowledge of the claim sufficient to make an investigation into the facts.
What evidence is sufficient to rebut the frontline worker presumption?
The Labor Code does not provide specific evidence that may rebut the presumption. However, evidence pertaining to family member exposure, leisure activities, and travel will be critical in rebutting the presumption. It is also important to build a timeline as to the date of the test, the test results, and the last day worked, including work activities.
What is the presumption for employees contracting COVID-19 during an employer “outbreak”?
Labor Code section 3212.88 establishes a rebuttable presumption of compensability for employees who contract COVID-19 during employment by an employer that experiences an “outbreak” of COVID-19 cases at a particular work location where an employer has 5 or more employees.
What constitutes an “outbreak”?
In order to have an “outbreak,” the employer must have 5 or more employees. An “outbreak” is defined as follows:
1. If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19.
2. 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.
3. 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.
What is the difference between an “outbreak” for workers’ compensation and for Cal Osha reporting?
AB 685 requires employers to notify employees who may have been exposed to COVID-19 and to report workplace outbreaks to the local health department. An “outbreak” is defined as 3 or more COVID-19 cases among workers at the same worksite within a 14-day period. Once this threshold is met, the employer must report to the local health department within 48 hours. AB 685 does not alter the definition of an “outbreak” for the workers’ compensation presumption.
When does the “Outbreak” presumption apply?
The presumption arises where:
1. The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services.
2. The employee was not working from home.
3. The day the employee last performed services is on or after July 6, 2020.
4. The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.
What is the investigation period for claims involving an “outbreak,” and when does it start?
The investigation period under Labor Code section 5402 is reduced from 90 days to 45 days. The investigation period commences when the employee files a claim form or when the employer has knowledge of the claim sufficient to make an investigation into the facts.
When an employer knows or reasonably should know that an employee tests positive for COVID-19, the employer shall report to their claims administrator within three business days.
What evidence rebuts the “outbreak” presumption?
The presumption may be rebutted by other evidence which includes, but is not limited to, measures the employer has in place to reduce the 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.
What duties does an employer have when an employee tests positive for COVID-19?
When an employer knows or reasonably should know that an employee 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:
1. 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.
2. The date the employee tests positive, which is the date the specimen was collected for testing.
3. 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.
4. 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.
What benefits are employees with COVID-19 claims entitled to, if 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.
In most cases, the employer should pay the first 80 hours of sick leave per FFCRA and AB 1867.
Can Permanent Disability from COVID-19 be apportioned to non-industrial factors?
Yes, apportionment pursuant to Labor Code sections 4663 and 4664 is applicable to determinations of permanent disability.
When should a claim form be provided?
Should an employee advise that he or she is sick with coughing, body aches, or respiratory problems, and believes it is due to work, or advises of a positive COVID-19 test, a claim form should be provided.
WHAT THIS MEANS FOR YOU
SB 1159 leaves open a multitude of avenues to rebut the COVID-19 presumptions. 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.
Questions? Please contact GMK with any further questions and obtain further information and access our COVID-19 calculator at www.gmklaw.com.
Jessica Tyndall, Esq.
GMK San Luis Obispo