Issue 103 - September 2020
California SB 1159 – Presumption of Workers’ Compensation Liability for COVID-19 Illness Claims
On September 17, 2020, Governor Newsom signed SB 1159 into law. This law creates a rebuttable presumption for COVID-19 that bears some similarity to Executive Order 62-20, which Governor Newsom signed back on May 6, 2020.
Here are some of the pertinent facts to know about SB 1159:
Who is covered by this new presumption?
The law covers the following employees for exposures sustained while at their place of work:
- Peace officers
- Emergency medical technicians
- Fire and rescue service coordinators
- Registered nurses
- Home health agency employees who provide “direct patient care”
- health facility employees (both those providing “direct patient care” and custodial employees)
- Health facility employees (other than those described above) who have been exposed to a COVID-19 positive patient within the preceding 14 days
- In-home supportive service employees providing care outside of their own home
Additionally, all employees at a workplace where a COVID-19 outbreak has occurred are also eligible for this presumption. An outbreak is defined as follows:
- 4% of the workforce (for employers with more than 100 employees) have tested positive in the preceding 14-day period.
- Four co-workers (for employers with 5-100 employees) have tested positive in the preceding 14-day period.
- Any workplace closed by local or state health departments, Cal/OSHA, or a school superintendent.
When does the presumption apply?
It applies from July 6, 2020 (the date after Executive Order 62-20 expired) through January 1, 2023.
When does the law take effect?
The bill was marked as an urgency measure in the closing days of the legislative session, so the bill took effect when it was signed by Governor Newsom on September 17, 2020.
How long does an employer have to investigate a claim that’s eligible for this presumption?
For the specific groups of employees noted above, a decision must be made in 30 days. For those employees whose workplace experiences an outbreak, the decision must be made within 45 days.
What type of testing must be performed?
A polymerase chain reaction test approved for use or approved for emergency use by the United States Food and Drug Administration but not serologic or antibody testing.
How do workers’ compensation benefits interact with those provided by the Families First Coronavirus Recovery Act (FFCRA)?
If an employee is entitled to FFCRA, those benefits must be exhausted before any temporary disability benefits or Labor Code Section 4850 benefits are paid. If an employee is unable to return to work upon exhaustion of FFCRA benefits and their claim has been accepted, they would be eligible for temporary disability or Labor Code Section 4850 benefits
What additional responsibilities does an employer have a result of SB 1159?
This law now requires an employer to notify its claims administrator (Sedgwick) within three days of the following:
- When an employee has tested positive.
- The date the employee’s specimen was collected for testing.
- The address (or addresses) where the employee was working for the preceding 14 days.
- The highest number of employees who reported to work at the employee’s place (or places) of employment during the preceding 45 days.
The bill also notes that failure to provide this information or the provision of false information may result in a $10,000 penalty.
What additional duties does the claims administrator have as part of this process?
The claims administrator is responsible for gathering the data referenced above to determine if an outbreak has occurred. As noted, in instances of an outbreak, all impacted employees are eligible for a presumption so the claims administrator needs to be aware if this standard should be applied to a particular claim.