COVID-19 Presumption Law In Effect Immediately
- July 29th, 2020
- Tom Richard
- No comments
SB 1159, the COVID-19 workers’ compensation presumption bill, was signed into law by the Governor on September 17, 2020, and is effective immediately.
Employers and claims departments must now comply with the reporting requirements established under Labor Code § 3212.88, including:
- A retrospective review and data compilation regarding all employees who have tested positive for COVID-19 from July 6, 2020 through September 16, 2020, and reporting that information to the claims administrator no later than October 17, 2020, and
- Starting Sept. 17, 2020, every time an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report specified information to the claims administrators.
Basically, the State of California has outsourced its contact tracing duties in the pandemic to California employers, local agencies and claims departments.
SB 1159 adds three sections to the Labor Code: 3212.86, 3212.87, and 3212.88. Each enacts a separate presumption law, applying to different classes of employees.
Notwithstanding the usual 90-day time frame allowed to investigate a workers’ compensation claim, Labor Code sections 3212.86, 3212.87, and 3212.88 require COVID-19 claims to be accepted or denied within 30 or 45 days, depending on the job classification of the claimant. Otherwise, these claims are presumed compensable and rebuttable only by evidence reasonably discoverable subsequent to the 30 or 45-day period.
Sec. 3212.86 applies to all California employees who meet certain criteria. It seems to codify much of Executive Order N-62-20 by confirming the rebuttable presumption that an illness or death resulting from COVID-19 on or after March 19, 2020, and on or before July 5, 2020, arose out of and in the course of employment. Similar to the Executive Order, Sec. 3212.86 includes such criteria as:
1. Work Time Proximity: on or after March 19, 2020, the employee performed labor or services at the employer’s direction;
2. Positive Test or Diagnosis: the employee tested positive for or was diagnosed with COVID-19 by a California physician or a licensed physician assistant or nurse practitioner;
3. Diagnosis Time Proximity: that diagnosis or test came within 14 days after a workday;
4. Work Place Proximity: that workday occurred at the place of employment, not the employee’s home or residence; and
5. Verified by Testing: if the diagnosis of COVID-19 was made without a contemporaneous positive test result to verify it, that diagnosis must be confirmed by subsequent testing within 30 days of the date of the diagnosis, including presumably with an antibody test. (However, the reliability of those antibody tests have been called into question, and are not permitted under the other sections of this law.)
Permitting a licensed physician assistant or nurse practitioner to make the presumption-triggering diagnosis is a change from the Executive Order.
Sec. 3212.86 requires that these claims be accepted or rejected within 30 days. Also, the “date of injury” is defined as the last day of work at the employer’s place of employment before the diagnosis or positive test.
As with the Executive Order, Sec. 3212.86 requires an employee to exhaust their paid sick leave benefits and meet specified certification requirements before receiving any temporary disability benefits or other leave of absence benefits (e.g., Section 4850 pay). To qualify for temporary disability, Section 4850 pay, or similar benefits, an employee is required to satisfy either of the following:
- If the employee tests positive on or after May 6, 2020, the employee must be certified for temporary disability within the first 15 days after the initial diagnosis. In addition, the employee must be re-certified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
- If the employee tested positive before May 6, 2020, the employee must have obtained a certification no later than May 21, 2020, documenting the period for which the employee was temporarily disabled and unable to work. Further, the employee must be re-certified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
This section applies to all pending matters except as otherwise specified, including, but not limited to, pending claims relying on Executive Order N-62-20. This section is not a basis to rescind, alter, amend, or reopen any final award of workers’ compensation benefits.
Sec. 3212.87 requires most of the same criteria and indemnity benefit offsets as in Sec. 3212.86 described above, though not the TD certification time-limits.
Three major differences:
- Sec. 3212.87 is only applicable to peace officers, firefighters and certain health care workers,
- A diagnosis alone does not trigger the presumption: there must be a positive test within 14 days of work, and
- It only applies to injuries occurring on or after July 6, 2020.
Sec. 3212.87 requires that these claims be accepted or rejected within 30 days. Also, the “date of injury” is defined as the last day of work at the employer’s place of employment.
The presumption extends following termination of service for a period of 14 days, commencing with the last date actually worked in the specified capacity at the employee’s place of employment.
Interestingly, Sec. 3212.87, and Sec. 3218.88 described below, define “test” or “testing” to mean a PCR (Polymerase Chain Reaction) test, approved for use or approved for emergency use by the United States Food and Drug Administration to detect the presence of viral RNA. The “test” or “testing” do not include serologic testing, also known as antibody testing. However, it leaves open the possibility that another “viral culture test” approved by the FDA that is at least as reliable as the PCR test, would qualify.
Sec. 3212.88 is a startling section in its complexity and the analytical and data compilation demands it places on small employers and claims adjusters. The Bill’s compliance obligations and enforcement penalties also raise many concerns.
Effective September 17, 2020, employers must accurately track the number of their employees working at each specific place of employment and timely report positive COVID-19 tests to their claims administrators, whether or not a claim is made. Also, employers have until October 17, 2020 to conduct a retrospectively review of past positive tests and report those to the claims administrator.
Sec. 3212.88 excludes the employees covered in Sec. 3218.87, and includes all other California employees whose employer has 5 or more employees.
Although this section requires most of the same time/place and testing criteria as Sec. 3212.87 described above, in order for it to be applicable the employee’s positive test must have occurred during a period of an “outbreak” of COVID-19 at the employee’s specific place of employment, and diagnosis alone does not trigger the presumption: there must be a positive test within 14 days of work.
This section places particular burdens on employers and claims examiners. Once an employer “knows or reasonably should know” that an employee has tested positive, the employer is required to do the following:
- Send written notification to its claims administrator within 3 business days of suspecting that an employee has tested positive.
- The written notification “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 employer’s written notification must include data regarding 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, as well as the total number of employees at a particular job site over a 45-day period preceding the last day the employee worked there.
If the employer forgets to timely submit this data or makes a clerical error in this reporting, it can result in a $10,000 civil penalty against the employer, as well as a Labor Commissioner citation.
With this limited information the claims adjuster is then tasked with the job of determining, on a rolling and continuous basis, if an “outbreak” has occurred. An “outbreak” exists if within 14 calendar days one of the following occurs at a specific place of employment:
- The employer has 100 employees or fewer at a specific place of employment and four (4) employees test positive for COVID-19, or
- The employer has more than 100 employees at a specific place of employment and four (4) percent of the number of employees who reported to the specific place of employment, test positive for COVID-19, or
- 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 with COVID-19.
“A specific place of employment” means the building, store, facility, or agricultural field where an employee performs work at the employer’s direction. If the employee works at multiple locations, then the presumption would apply if an “outbreak” exists at any one of those locations. Further, the employee’s positive test shall be counted for the purpose of determining the existence of an outbreak at all of those places of employment.
“A specific place of employment” does not include the employee’s home or residence, unless the employee provides home health care services to another individual at the employee’s home or residence. It does not apply to buildings or other locations of the employer that the employee did not enter.
The section also requires an employer to retrospectively review past positive tests and report those to the claims administrator. It requires any employer who is aware of an employee testing positive on or after July 6, 2020, and prior to the effective date of the statute, to report the required information to the claims administrator in writing via electronic mail or facsimile, within 30 business days of the effective date of the statute. That means that employers have until Saturday, October 17, 2020 to comply.
The claims administrator must use the information to retroactively determine if an outbreak has occurred from July 6, 2020, to the effective date of the statute for the purpose of applying the presumption.
If the adjuster concludes that an “outbreak” has occurred, then the presumption would apply. The claims administrator must continually evaluate each claim to determine whether the requisite number of positive tests have occurred during the surrounding 14-day periods.
Evidence relevant to rebutting the presumptions may include any measures the employers has in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection.
Instead of the 30 day time limit to accept or reject a claim under Sec. 3212.86 and Sec. 3212.87, this section requires that these claims be accepted or rejected within 45 days. As with Sec. 3212.87, the presumption extends following termination of service for a period of 14 days, commencing with the last date actually worked in the specified capacity at the employee’s place of employment.
Ready to comply with SB 1159, the COVID-19 presumption law?
RTGR Law LLP supports and helps California public agencies, employers and claims departments:
- Craft timely SB 1159 and AB 685 employer reporting and notification procedures and tools,
- Develop retrospective claims review policies & protocols,
- Build investigation best practices and WCAB litigation tactics for COVID-19 presumption defenses,
- Use the interactive process to manage COVID-19 disability and quarantine accommodations,
- Strategically manage COVID-19 Workers’ Damages lawsuits & the Exclusive Remedy defense, and
- Secure COVID-19 Excess WC insurance coverage.
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RTGR Law tackles the most challenging claims and controversies on behalf of California public agencies and employers. That’s what sets us apart. Our COVID-19 team is ready to help right now with legal strategies. If you have questions about the presumption or would like strategic help on any complex case, send an e-mail to your closest RTGR Law office:
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