On September 17, 2020, Governor Newsom signed SB 1159 into law, creating Labor Code sections 77.8, 3212.87 and 3212.88 and officially codifying the Governor’s prior Executive Order N-62-20. The new law requires employers to report an employee’s COVID-positive test results to their worker’s compensation carrier and establishes penalties of up to $10,000 for a failure to do so, among other violations. Note that the new reporting requirements are retroactive.
When is the Law Effective and What Time Period Does It Cover?
SB 1159 was immediately effective upon its signing on September 17, 2020. It provides that for an employee who suffers illness or death resulting from COVID-19 between July 6, 2020 through January 1, 2023, a “disputable presumption” exists that employees contracted the virus at work for workers’ compensation purposes.
Can the Employer Challenge the “Disputable Presumption”?
Although SB 1159 establishes a presumption that an illness or death resulting from COVID-19 has arisen out of and in the course and scope of employment, that presumption is disputable. An employer may challenge the presumption by establishing evidence such as: (1) measures in place to reduce potential transmission of COVID-19 in the place of employment; (2) the employee’s risks of COVID-19 infection outside of the workplace; (3) statements made by the employee regarding exposure and diagnosis; and (4) any other evidence normally used to dispute a non-COVID work-related injury.
When Does the Employer Have to Report a Positive Test?
SB 1159 applies to employers with five or more employees, and mandates reporting to the employer’s worker’s compensation carrier when employees test positive for COVID-19. The law applies if an employer “knows or reasonably should know” that an employee has tested positive for COVID-19 within 14 days after performing work at the employee’s place of employment.
For employees who previously indicated to their employer that they tested positive for COVID between July 6, 2020 and September 17, 2020, employers now have 30 days from September 17 to report those positive tests to their worker’s compensation carrier.
For employees who report a positive test after September 17, the employer has three days from the date of notice of the positive test to report that information to its carrier.
What Does the Employer Have to Report?
The reporting obligation relates only to a COVID-positive (“Polymerase Chain Reaction”) test. It does not apply to a positive antibody (“serologic”) test.
The employer must report specific information to its claims administrator, including the fact that an employee has tested positive (without identifying the employee, unless the employee claims the positive diagnosis is work-related or has filed a claim form); the date of the positive test (which is the date the testing specimen was collected); the address of the employee’s specific place of employment during the 14-day period prior to the test; and the highest number of employees who reported to work at that location within 45 days prior to the last date on which the subject employee worked there.
For positive tests between July 6, 2020 and the effective date of SB 1159, the employer must report the highest number of employees who reported to work at the specific place of employment between those dates.
What Happens After Reporting a Positive COVID-19 Case?
The claims administrator will use the reported information to determine whether there has been an “outbreak” of COVID-19 at the employee’s “specific place of employment.”
A “specific place of employment” includes, for example, a “building, store, facility, or agricultural field where an employee performs work at the employer’s direction.” It does not apply to teleworkers in their remote work environment, unless they are home health care workers.
An “outbreak” occurs if (a) four employees test positive for COVID-19 when the employer has 100 employees or fewer; (b) four percent of the employees at the specific place of employment test positive for COVID-19 if the employer has more than 100 employees; or (c) the 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 or Health or a school superintendent.
What Are the Penalties For a Failure to Report?
Following these reporting requirements is critical: SB 1159 provides for a penalty of $10,000 against an employer that “intentionally submits false or misleading information or fails to submit information.”
Generally, employers are not required to provide a First Report of Injury form to employees unless the employee has asserted that an injury or illness occurred at work. That said, however, it is best to provide the form to any employee who reports an illness or injury that could have occurred at work, to avoid a later allegation that the employer attempted to prevent the employee from pursuing a worker’s compensation claim.
Employers are strongly advised to discuss these details and the impact of SB 1159 with their worker’s compensation carrier or insurance broker for further information.
For employment questions specific to your company, contact the employment attorneys at LightGabler.For questions regarding COVID-19 issues or other employment questions specific to your company, contact the employment attorneys at LightGabler.