California Law Sb 1159

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Date of injury is on or after July 6, 2020. Employer has minimum of 5 employees. Employer has 100 or less employees: 4 employees test positive. Employer has 100 or more employees: 4 percent of the employees who report to a specific place of employment test positive. A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, OSHA, or a school superintendent due to a risk of infection with COVID-19. SB-1159 provides that once an employer knows, or should have reasonably known, that an employee has tested positive for COVID-19, the employer must report a claim to their claim administrator within 3 business days, except as outlined below. This requirement pertains to both work and non-work related COVID-19 diagnoses. Positive test occurred July 6 through September 16 Any employer who is aware of an employee testing positive shall report to their claims administrator, within 30 business days of the effective date of this section.

California SB-1159 – New Mandatory Reporting Guidelines for COVID-19 Claims

Any employer who is aware of an employee testing positive shall report to their claims administrator, within 30 business days of the effective date of this section.

  1. Asserts the virus is work-related. Has filed a claim form pursuant to Labor Code Section 5401. Date the employee tests positive and date the specimen was collected for testing. Address(es) of the employee’s specific place(s) of employment during the 14-day period preceding the date of the employee’s positive test. 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.
  2. The legislation also provides that an employer who intentionally submits false or misleading information or fails to submit information when reporting could be subject to a civil penalty in the amount of up to $10,000 to be assessed by the Labor Commissioner. SB 1159 (Hill), enacted on September 17, 2020, added Sections 3212.86, 3212.87, and 3212.88 to the Labor Code. The bill protects the health and safety of all employees and the public by facilitating the provision of workers’ compensation benefits.
  3. Employees who are sick can stay home and be provided workers’ compensation benefits, thereby reducing the spread of the virus to others at work and in the community.The new law encourages employers to comply with all local health directives and guidance concerning safely reopening businesses to reduce risk of exposure and mitigate outbreaks in the workplace. Who is helped by SB 1159?

Employees whose employers have five or more employees, and who test positive for COVID-19 during an outbreak at their specific workplace. An outbreak exists if within 14 days one of the following occurs at a specific place of employment: (1) four employees test positive if the employer has 100 employees or fewer; (2) four percent (4%) of the number of employees who reported to the specific place of employment test positive if the employer has more than 100 employees; or (3) 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 of COVID-19.

  • How are employers affected? This law creates a rebuttable presumption of an industrial injury or illness for the above-described categories of workers.
  • It encourages employers to comply with local health orders and industry-specific guidance for safely reopening by allowing employers to introduce evidence regarding measures they have taken to reduce potential transmission of COVID-19 in the workplace, in addition to other relevant evidence, to rebut the presumption.
  • This bill limits the risk of employers being liable for claims where the infection did not occur at work by tailoring the presumptions to those first responders and frontline health care workers whose work puts them at the greatest risk of exposure and other employees where there is a demonstrated and verifiable COVID-19 outbreak at their worksite.

Reporting Requirements. This bill imposes reporting requirements on employers for purposes of the outbreak presumption. Specifically, when an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report certain information to its claims administrator.

Employers may be subject to civil penalties of up to $10,000 for intentionally submitting false or misleading information, or for failing to report required information.

  1. How will DIR implement this bill? Disputes over whether an injured worker is covered under a presumption will be decided by the Workers’ Compensation Appeals Board.
  2. The Division of Workers’ Compensation is currently hearing all cases via telephone or video during the COVID-19 crisis.
  3. The Division of Workers’ Compensation’s Audit Unit may review workers’ compensation claim files to see if cases that were eligible for the presumption were improperly denied.
  4. The Labor Commissioner’s Office can investigate failure to comply with reporting requirements and assess related penalties.

SB 1159 provides that the presumption of a work-related illness “is disputable and may be controverted by other evidence.” What does that mean?

  • This means that even when an employee is presumed to have become ill from COVID-19 at work, an employer may dispute that conclusion. In such a case, however, the employer bears the burden of proving that the injury or illness did not occur at work.
  • SB 1159 requires that my doctor’s diagnosis be confirmed by a test. What kind of test is acceptable?
  • The Centers for Disease Control and Prevention (CDC) advise that there are generally two kinds of tests available for COVID-19: viral tests and antibody tests.

A viral test tells you if you have a current infection. An antibody test tells you if you had a previous infection.

If the appeals board finds in accordance with the presumption, the employee is entitled to full benefits, subject to certain certification and exhaustion procedures for temporary disability benefits.

For injuries that occurred between March 19 and July 5, 2020, under the presumption the employee may utilize either a viral test or serologic antibody test. For injuries that occurred on or after July 6, 2020, the employee must test positive utilizing a PCR (Polymerase Chain Reaction) test approved for use or approved for emergency use by the United States Food and Drug Administration (U.S.

FDA) to detect the presence of viral RNA. The employee may also utilize any other viral culture test approved for use or approved for emergency use by the U.S. FDA to detect the presence of viral RNA which has the same or higher sensitivity and specificity as the PCR Test. The employee may not rely on serologic testing, also known as antibody testing.

Additional tests are in development.

  • For your records, you will want to keep copies of all medical records, including records related to your test.
  • I filed a workers’ compensation claim for a COVID-19-related illness that my employer denied before SB 1159 became law. Does the new law automatically reverse my employer’s decision? Where the denial occurred before SB 1159 became law, the employer may reconsider and accept the claim based upon the new law or stand by the denial.
  • However, if your employer does not reverse its decision and you believe that you are entitled to benefits under this law, you may file for a hearing at your closest DWC district office. You may seek assistance from an attorney or speak with one of the division’s information and assistance officers to help you.

If a presumption is not applicable to me, does that mean I’m unable to file a workers’ compensation claim for a COVID-19-related illness? If you are an employee and suffer a job-related injury or illness, you are entitled to file for workers’ compensation benefits.

SB 1159 also creates reporting requirements for the employer to the workers’ compensation claims administrator. Note that workers’ compensation claims administrators will then use the information reported by the employer to determine if an Outbreak (defined above) has occurred for purposes of administering a claim.

You should tell your employer that you would like to file a workers’ compensation claim.

  1. They are then required to provide you with a claim form. DWC’s website has detailed information on how to file a claim.
  2. If you don’t qualify for a presumption under the new law, you may still be eligible to receive workers’ compensation benefits if you contracted COVID-19 at work.
  3. You will need to meet certain threshold requirements, including proving that your injury or illness arose out of your employment.

I was diagnosed with COVID-19 and have been using my own sick leave while I have been unable to work. Under SB 1159, if my illness is deemed related to my work, is my employer required to give me my sick leave back? As explained below, it depends upon the type of sick leave benefits you are using.

If your employer is providing you paid sick leave specifically available in response to COVID-19 (such as under the Families First Coronavirus Response Act or Executive Order N-51-20), then you must use that sick leave before you receive temporary disability benefits. If you do not have any supplemental paid sick leave specifically available in response to COVID-19, temporary disability benefits should be paid by your employer from the time you became disabled.

Employers who fail to properly report this information to the claims administrator could be subject to penalties.

This means that, if you took paid leave (sick leave, vacation time, personal time off) through your employer’s plan, that leave should be restored back to you. If you have any questions about this or to address your specific situation, please speak with your employer.