Employers’ SB 1159 Compliance Guide
- September 30th, 2020
- Tom Richard
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This article is designed to help employers and business owners understand the employer reporting obligations of SB 1159, the COVID-19 workers’ compensation presumption law.
What happened? Basically, the State of California has outsourced to employers much of the public health monitoring required due to the pandemic. Employers, along with their workers’ compensation claims administrators, are charged with the job of determining if a COVID-19 “outbreak” has occurred.
SB 1159 adds three sections to the Labor Code: 3212.86, 3212.87, and 3212.88. Each section enacts a separate COVID-19 presumption law, applying to different classes of employees.
This article focuses on Labor Code section 3212.88, the “outbreak” presumption, especially the employer reporting obligations contained therein. For a review of 3212.86 and 3212.87, please visit our Summary of SB 1159.
In addition to this article, you can watch our On-Demand Webinar covering employer reporting obligations of SB 1159, featuring RTGR Law’s Senior Partner, Bill Armstrong. Its available 24/7 from any device.
When does the Sec. 3212.88 presumption apply?
Sec. 3212.88 excludes the employees covered in Sec. 3218.87, (peace officers, firefighters and certain hospital and health care workers) and includes all other California employees whose employer has Five (5) or more employees. To qualify for this COVID-19 presumption of injury:
- The employee must test positive within 14 days of a workday occurring on or after July 6, 2020, and
- The positive test must have occurred during a period of “outbreak” of COVID-19 at the employee’s “specific place of employment.”
Diagnosis alone does not trigger the presumption: there must be a positive COVID-19 test which occurs during an “outbreak” and within 14 days of work.
What must Employers to do right now?
Most employers must immediately comply with the two major notice and reporting requirements of Labor Code § 3212.88:
- Starting September 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 their claims administrators.
- Employers must also conduct 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 report that information to the claims administrator no later than October 29, 2020.
All this reporting is mandatory whether or not a workers’ compensation claim is made in connection with that specific positive test.
First, employers must report on every new positive test. Every time the employer “knows or reasonably should know” that an employee has tested positive for COVID-19 on or after September 17, 2020. The employer is required to do the following:
- Send written notification to its claims administrator within three (3) business days of suspecting that an employee has tested positive.
- Importantly, 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 workers’ compensation claim form pursuant to Labor Code Section 5401.
This privacy aspect of Section 3212.88(i) appears to relate to the reporting to the claim administrator, not to the employer’s “collection” of the necessary information to report. Nevertheless, employers are cautioned to maintain the confidentiality of the medical diagnosis data collected in this process.
The employer’s written reporting to the claim administrator must include data regarding the:
- The address or addresses of the employee’s specific place(s) of employment during the 14-day period preceding the date of the employee’s positive test, and
- The highest number of employees who reported to work at each of those specific place(s) of employment in the 45-day period preceding the last day the employee worked there.
What is a “specific place of employment”?
The building, store, facility, or agricultural field where an employee performs work at the employer’s direction. It does not apply to buildings or other locations of the employer that the employee did not enter.
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.
What does “highest number of employees” mean?
Does the employer provide the claims adjuster the average number of employees who worked at each “specific place of employment” within those 45-days, or the total head count over those 45 days? The statute requires (and it is mathematically advantageous for the employer to report) the “total,” not the “average.” Employers should add up the number of employees who “reported” to the location during the 45 days, and report that number. Even if many of those employees never overlapped with each other at the location on the same days or even the same weeks, and even if some were only there briefly, report the “highest” or total number who set foot at that location, however briefly.
What is the test date? Sec. 3212.88(i)(2), defines the positive test date as: “The date…the specimen was collected for testing.”
Which COVID-19 “test”? Sec. 3218.88 defines “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.
Penalty. 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 per violation, against the employer, as well as a possible Labor Commissioner citation.
“Outbreak” analysis: With this employer-reported information in hand, the claims adjuster is then tasked with the job of determining, on a rolling and continuous basis, if an“outbreak” has occurred. If an employee’s positive test occurred during an “outbreak,” then the presumption may apply to the employee’s claim.
The analysis must be made at multiple times, including every time the positive test is reported. The adjuster must look back 14 days as well as look forward to the 14th day after the positive test. An “outbreak” exists if within 14 calendar days either before or after the positive test, one of the following occurs at a “specific place of employment”:
- The employer has 100 or fewer employees 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.
Second, employers must transmit a retrospective review of all positive tests by October 29, 2020?
Employers have until October 29, 2020 to also conduct a retrospective review of past positive tests and report those to the claims administrator. Any employer who is aware of an employee testing positive on or after July 6, 2020, and prior to September 17, 2020, must report to the claims administrator in writing via electronic mail or facsimile, the following:
- The address or addresses of the employee’s specific place(s) of employment during the 14-day period preceding the date of the employee’s positive test, as well as
- The highest number of employees who reported to work on any given work day between July 6, 2020 and September 16, 2020, at each job site(s) where the employee worked.
This retrospective data must be reported within 30 business days of the effective date of the statute. That means that employers have until Thursday, October 29, 2020 to comply.
Two different employer reporting criteria:
For 9/17/2020 and after positive tests, 3212.88(i) requires employers to report: “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.” That means for 9/17/2020 and after positive tests, add up the total of all 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 there.
For 7/6/2020 thru 9/16/2020 positive tests, on the other hand, 3212.88(k) requires employers to: “instead report the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between July 6, 2020, and the effective date of this section.” (emphasis added). That means for 7/6/2020 thru 9/16/2020 positive tests, report not the total of all employees who worked at the employee’s specific places of employment, but the highest number of employees who reported to work at the location on any given work day between 7/6/2020 and 9/16/2020.
What happens with this retrospective information? The claims administrator must use the information to retroactively determine if an “outbreak” has occurred from 7/6/2020 thru 9/17/2020 for the purpose of applying the presumption. The adjuster must review every positive test and determine if there were 4 or more, or 4% or more, positive tests within 14 days of each positive test.
If the adjuster concludes that an “outbreak” has occurred at the time of a test, then the presumption would apply to that claim. 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.
What else should employers do? Evidence relevant to rebutting the SB 1159 presumptions may include any measures the employer has in place to reduce potential transmission of COVID-19 in the employee’s place of employment, as well as evidence of an employee’s non-occupational risks of COVID-19 infection. Thus, remedial measures to reduce transmission in the workplace are important for public health and worker safety, and documenting those measures is also useful in controlling workers’ compensation claims exposure by serving as evidence to rebut these presumptions.
What happens if the presumption applies? Section 3212.88 requires that claims be accepted or rejected within 45 days. 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.
The employee has to first exhaust their sick leave benefits paid specifically in response to COVID-19 before receiving any temporary disability benefits or other leave of absence benefits (e.g., Section 4850 pay).
If it is determined that an “outbreak” did not occur, and the employee has filed a DWC-1 claim form, a denial should still be sent no later than 45 days after the filing, unless the employee is covered by Sec. 3212.87, in which case the denial must be sent no later than 30 days after the filing. Relying on the 90-day time-frame of Labor Code section 5402 runs the risk that an “outbreak” will later be found to exist, thereby rendering untimely any denial sent after 45 days.
Claims Best Practices:
- Within 45 days of the DWC-1 filing, post-9/17/20, make a determination if an outbreak occurred. If the answer is “no,” and there is no higher risk of COVID-19 infection to that worker than is faced by the general public, the claim can be denied because it is not covered by any presumption. Issue the denial within 45 days, even though 90 days may apply.
- If an “outbreak” is later determined to have occurred during the time of the employee’s positive test, stand by the denial if the rebuttal criteria of the statute are met, otherwise the claim should be accepted.
- For claims filed between 07/06/2020 and 09/17/2020 that are pending and on delay, if appropriate issue a denial within 45 days, regardless of whether you feel the presumption applies.
- For claims filed between 07/06/2020 and 09/17/2020 that are already denied, leave those alone for now because the employer has a period of 30 days from 9/17/20 to provide retroactive outbreak data to assess if the presumption applies.
- Once the “outbreak” data is available (on or before 10/29/2020), on a retroactive basis determine if an “outbreak” occurred. If “yes,” then in order for the presumption to be applicable, the employee’s positive test must have occurred during that “outbreak” of COVID-19 at the employee’s specific place(s) of employment, and the positive test was within 14 days of the employee working there.
- If the presumption applies retroactively to a previously denied claim, you can stand by the denial if the rebuttal criteria of the statute are met, otherwise the claim should be accepted.
- An employee of one of our vendors who works at one of our locations tests positive. Do we include that person in our claim reporting headcount? No, if this is truly an independent contractor/vendor. We only count our “employees” per the statute.
- What about contingent workers or temp workers hired through an agency? If there is a dual employment relationship, then “yes,” count them in the headcount. If they are pay-rolled by the temp agency or someone else, and covered under their WC insurance, then probably “no,” per Labor Code sec. 11663.
- What if the temp agency/contractor asks for our employee “outbreak” headcount from us? Are we obligated to provide our employee headcount to temp agency/contractor agency? Probably not. There is nothing in SB 1159 that requires it.
- Do we include in the headcount employees on leave/vacation during the 45 days? No, not if they were away from work.
- Do we need to include a positive test for an employee who solely works from home? No.
- If an employee who is covered by the 3212.87 presumption (safety officer, hospital worker, etc.) tests positive, should they be included in the “outbreak” data required by 3212.88? Probably “yes.” Even though 3212.88(a) excludes employees covered by the 3212.87 from the “outbreak” presumption, the rest of section 3212.88 does not contain a similar exclusion regarding the total number of employees at a job site, for example.
- If we have a maintenance services employee who visits multiple locations throughout the day (e.g., performs equipment installation services or repairs at various locations), do we have to report all those locations as well? Yes. “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.
- Is there a minimum duration of time that employee needs to spend at a specific location for it to be reported? There is no duration threshold. It can be minutes or even seconds.
- Does a “specific place of employment” include the facility or location owned and operated by a third-party, where your employee is dispatched to work? This is a difficult question without a consensus answer. It would probably not include a retail store or restaurant where the employee is sent to buy something needed for work or pick up lunch for the crew, but would include the location that a temp worker is sent by their temp agency to work, even for one day.
- Does outbreak mean the entire address location? How about locations with multiple floors? The statue says “building.” That means the entire multi-story building is a “specific place of employment.” If it is a multi-building complex or campus, each individual building is a “specific place of employment,” not the entire campus.
- Is it even legal for me to ask if an employee has tested positive for COVID-19? Yes, because the information is necessary for the employer to maintain a safe workplace for others. However, an employer should not ask about any underlying diagnoses or preexisting medical conditions, even those that may make an employee more vulnerable to the effects of COVID-19.
- What gives us the authority to require an employee to provide a “positive” test? What if the employee refuses? We don’t think we can “require” an employee to provide a pos. test result, though we can only ask for it. We get to ask for it without violating HIPAA, because that is implicitly required by 3212.88 and information gathered as required by law is a HIPAA exception. The “test” is defined in 3218.88 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.) So, until you have proof of a PCR (or equivalent) pos. test, you do not have a reporting requirement. In short, if an employee says “I’m calling in sick because I have COVID,” the employer should ask for a copy of the test or at least verbal confirmation that it was a PCR test, and then report it. If the employee refuses to disclose, that fact should be documented, but the alleged positive status or suspected COVID infection does not need to be reported.
- If an employee is not filing a claim, can we still disclose the name of the employee in the first report of outbreak tracking? Only if the employee “asserts” that it is work-related. “Asserts” is not defined, so we must assume that means that the employee says its work-related, but for whatever reason has not yet returned a claim form. Otherwise, in an abundance of caution, do not report the employee’s name.
- If an employee “asserts” that they tested positive for COVID-19 and got it at work, should we give them a claim form, in addition to reporting the positive test? Yes.
- If the COVID-19 vaccination is given to employees at work as mandated by the employer, would a negative reaction to the vaccine be compensable? Yes. In Maher v. WCAB (1983) 48 CCC 326, an employer may be liable for an injury sustained as a result of treatment that is required as a condition of employment.
- What if the COVID-19 vaccination is offered to employees as a convenience, but is not mandated by the employer? An employer may still be liable for an injury sustained by an employee as a result of treatment that is optionally provided as preventative care, even if not a condition of employment, especially where it was offered by the employer in part for the benefit of the employer, i.e., to help prevent the spread COVID-19 in the workplace to other employees and to patients, per Saint Agnes Medical Center v. WCAB (Cook) (1998) 63 CCC 220 (writ denied).
Ready to comply with SB 1159?
RTGR Law LLP supports California employers and claims departments and helps:
- 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 strategies 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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