Covid-19 and Workers’ Compensation

13 October 2020

SB1159 was signed into law on September 17, 2020, g Sections 3212.86, 3212.87, and 3212.88 to the Labor Code.  SB 1159 codifies the presumption that COVID-19 is an occupational injury and therefore eligible for workers’ compensation benefits if specific criteria is met.

This allows employees who are sick to stay home and be provided workers’ compensation benefits.  This will reduce the spread of the virus.

This law encourages employers to comply with all local health directives and guidance concerning safely reopening businesses to reduce the risk of exposure and mitigate outbreaks in the workplace.

This law covers all California employees who worked at a job site outside of their home at the direction of their employer between March 19 and July 5, 2020. Additionally, it helps

  1. First Responders and Health Care Workers who got sick or injured due to COVID-19 on or after July 6, 2020, by creating a rebuttable presumption of eligibility for workers’ compensation benefits if specified criteria are met.
  2. Employees whose employers have five or more employees, and who test positive for COVID-19 during an outbreak at their specific workplace. 

Outbreak is defined as:  if within 14 days one of the following occurs at a specific place of employment:

  1. Four employees test positive if the employer has 100 employees or fewer;
  2. Four percent (4%) of the number of employees who reported to the specific place of employment test positive if the employer has more than 100 employees; or
  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. 

One of the ways an employer can refute the presumption of work-relatedness is by introducing evidence of the measures taken to reduce the potential transmission of workplace COVID-19.

New reporting requirements states that when an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report certain information to its claims administrator.  Employers may be subject to civil penalties of up to $10,000 for intentionally submitting false or misleading information, or for failing to report required information.

Disputes over whether an injured worker is covered under a presumption will be decided by the Workers’ Compensation Appeals Board.  This means that even when an employee is presumed to have become ill from COVID-19 at work, an employer may dispute that conclusion. In such a case, however, the employer bears the burden of proving that the injury or illness did not occur at work.

SB 1159 requires that a COVID-19 diagnosis be confirmed by a test. The Centers for Disease Control and Prevention (CDC) advise that there are generally two kinds of tests available for COVID-19: viral tests and antibody tests.

  • A viral test tells you if you have a current infection.
  • An antibody test tells you if you had a previous infection.

For injuries that occurred between March 19 and July 5, 2020, either a viral test or an antibody test may be utilized.

For injuries that occurred on or after July 6, 2020, the employee must test positive utilizing a PCR (Polymerase Chain Reaction) test approved for use or approved for emergency use by the United States Food and Drug Administration (U.S. FDA) to detect the presence of viral RNA.  Additional tests approved by the FDA similar to the PCR test may be used and tests in development may also be considered. Antibody testing is not allowed.

The Department of Industrial Relations has more information on these new labor laws, you can view here

Regardless of whether an employee files a claim before or after September 17, 2020, the employer is required to notify you of acceptance or denial of your claim by letter, as they must do under current law.