RTGR Law LLP | Office Locations
510.338.3166   510.338.3167

Our Blog

Rapid Antigen Tests Do Not Trigger COVID Presumptions

Rapid Antigen Tests Do Not Trigger COVID Presumptions

Many people are home-testing or self-testing at work for COVID-19 with rapid antigen or antibody test kits. Indeed, antigen tests are acceptable for compliance with the testing mandate of Cal/OSHA’s Emergency Temporary Standards. But do those antigen tests take the place of PCR tests when it comes to Workers’ Comp claims?


SB 1159, the California COVID-19 presumption law, provides that only a positive PCR test (or other similarly reliable viral culture test) will trigger the COVID presumptions. Also, only positive PCR test results are required to be reported to the Workers’ Comp claims administrator, each one counted to determine whether an “outbreak” has occurred.


No “Outbreak” Reporting Required:


Labor Code section 3212.88, part of SB 1159, requires that an employer who knows or reasonably should know that an employee has tested positive for COVID-19, shall report it to their claims administrator, who is charged with calculating whether a sufficient number of employees at a particular location have tested positive. If so, an “outbreak” exists which gives rise to a presumption of injury.


Labor Code section 3212.88(m) goes on to define “test” or “testing” as used in the section.  It excludes serologic testing, also known as antibody testing. Instead, “test” or “testing” is defined as 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. “Test” or “testing” may also include any other approved alternative viral culture test, but only if it has the same or higher sensitivity and specificity as the PCR Test.


In light of the clear wording of the statute, it is pretty well understood that a positive antibody test does not trigger SB 1159.  But what about positive antigen test results?


Rapid antigen tests are a quick way of finding active COVID-19 cases. They are similar to the method used by doctors to test for strep throat infections. However, antigen tests may not be as sensitive as PCR-based or other nucleic acid amplification tests. (See: Crozier A, Rajan S, Buchan I, et al. Put to the test: use of rapid testing technologies for COVID-19 BMJ.  February 2021.)


If a particular employee’s antigen test does not have the same or higher sensitivity and specificity as the PCR test, then Labor Code section 3212.88 would seem to say that the positive test result need not be reported to the claims administrator, absent verification by a subsequent PCR test.


No Presumptions Apply:


Labor Code section 3212.88 further provides that if an employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at work during an “outbreak,” then the employee has a presumed compensable COVID Workers’ Comp claim.


Similarly, with or without an “outbreak,” Labor Code section 3212.87 provides that certain public safety officers and healthcare personnel who test positive for COVID-19 within 14 days of work are also presumed to have contracted the disease at work.


So, will a police officer’s positive antigen test results trigger the presumption? What about an employee who has tested positive for COVID-19 during an “outbreak” using the rapid antigen test?


In either case, the presumption should not apply because both Labor Code sections 3212.87(i) and 3212.88(m) use the same definition of a “test” to invoke the presumption: a PCR test (or other similarly reliable viral culture test).


In Summary: Convenient rapid antigen or antibody tests are useful for many purposes, but not when it comes to Workers’ Comp claims administration and application of SB 1159 presumptions.  Unless the viral culture test has the same or higher sensitivity and specificity as the PCR test, the results of the test do not take the place of PCR tests.


Learn More about Antigen v. PCR tests: 


“PCR tests, which are still mostly done at hospitals and other testing facilities rather than at home, are far more sensitive than antigen tests. They’re able to detect smaller quantities of the virus and detect them sooner (and for more time) than antigen tests.” https://news.uchicago.edu/story/when-should-i-use-rapid-covid-test-and-how-accurate-are-they


Rapid antigen tests “cannot give a definitive diagnosis of COVID-19. Instead, the test is a way of initially screening people and identifying who among them needs a more thorough follow-up diagnosis.” https://safeworklaboratories.com.au/pcr-vs-antigen-covid-test/


A 2020 study by the U.S. Centers for Disease Control and Prevention (CDC) found the antigen test’s range of sensitivity to be lower than PCR tests:
• 64% for people exhibiting symptoms
• 36% for people who are showing no symptoms

Tags: , , , , ,

Leave a Comment