Legal Update: On September 17, 2020, California Governor Newsom signed SB 1159 into law expanding on the rebuttable presumption created from Executive Order N-62-20 to include illness or death resulting from COVID-19 to be compensable for any employee and establishing two new presumptions pertaining to frontline employees and employees who contracted COVID-19 during a workplace outbreak on or after July 6, 2020 through January 1, 2023, resulting in the addition of three (3) Labor Code sections. Labor Code §3212.86 codifies Executive Order N-62-20 that created a rebuttable presumption that an employee who was diagnosed with or tested positive for COVID-19 between March 19, 2020 through July 5, 2020 contracted the virus on the job. SB 1159 extends the presumption to encompass an illness or death related to COVID-19 to be compensable if the following four conditions are met:
1) The employee has tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;
2) The last day the employee worked at the employer’s direction at his or her place of employment was on or after March 19, 2020 and on or before July 5, 2020;
3) The place of employment was not the employee’s home or residence; and
4) The COVID-19 diagnosis was made by a licensed physician and surgeon holding a M.D. or D.O. or a supervised state licensed physician assistant or nurse practitioner. The diagnosis is confirmed by testing or by a COVID-19 serologic test within thirty (30) days of the date of the diagnosis
Labor Code §3212.87 creates an industrial causation presumption for frontline employees who have contracted COVID-19 in the workplace, including illness or death resulting from COVID-19, between July 6, 2020 and January 1, 2023. The frontline employees covered under this presumption are the following, including but not limited to: firefighters, peace officers, rescue service coordinators, peace officers, health facility employees, registered nurses, emergency medical technicians, emergency-medical technician-paramedics, employees providing direct patient care for a home health agency and providers of in-home supportive services. For the presumption to apply, the aforementioned employees must establish the following conditions:
1) They performed labor or services at their place of employment, not their home or residence, on or after July 6, 2020; and
2) The employee has tested positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.
Labor Code §3212.88 establishes an industrial causation presumption for employees who may not be frontline workers but who test positive for COVID-19 during an outbreak at their place of employment if it has five or more employees. The injury for the presumption encompasses illness or death resulting from COVID-19. For the presumption to apply, the employee must establish the following conditions:
1) The employee tests positive for COVID-19 within 14 days from a day the employee performed labor or services at the employee’s place of employment at the employer’s direction; and
2) The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment on or after July 6, 2020.
Per Labor Code section 3212.88(m)(4), an outbreak exists if within 14 calendar days one of the following occurs at a specific place of employment:
(A) If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19.
(B) If the employer has more than 100 employees at a specific place of employment, 4 percent of the number of employees who reported to the specific place of employment, test positive for COVID-19.
(C) 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.
If an employer does not report knowledge of a COVID positive employee in the workplace to its claim administrator via e-mail or facsimile within 3 days, the employer is subject to a civil penalty for up to $10,000.00. Under Labor Code §3212.88, there is also a 45 day period to deny the claim after the claim form is filed.