On September 17, 2020, California Governor Gavin Newsom signed Senate Bill 1159 into law.  In addition to codifying the Governor’s Executive Order N-62-20, which established a time-limited rebuttable presumption for workers who are diagnosed with COVID-19, the bill extends the presumption to January 1, 2023 and maintains the narrow time period during which an employer can rebut the presumption. 

The bill separates the presumption of compensability based on two new categories of workers:

Firefighter, peace officer, and a broadly-defined set of health care professionals:

• To qualify for the presumption, workers must receive a positive “PCR” test for Covid-19, within 14 days of working at a place of employment on or after July 6, 2020, and within 14 days of their termination of employment.

• Employers can dispute the presumption and the claims administrator must determine compensability within 30 days (compared to the normal 90).

• Paid sick leave benefits created specifically in response to Covid-19 must be exhausted before temporarily disability is paid

Businesses that have more than 5 employees: statutory duration, benefits owed, testing, and the disputable nature of the presumption are the same, but they are key differences:

• An “outbreak” must occur, which is defined as 4 or more positive tests in a “specific place of employment” with 100 employees or fewer or 4% of employees if the employer has more than 100 employees. 

• Compensability decisions must be made within 45 days

Important Reporting Requirements

Beginning on September 17, 2020, when an employer “knows or reasonably should know that an employee has tested positive for COVID-19” the employer must report to its Workers Compensation carrier the following information within three business days, via e-mail or fax: 

• An employee has tested positive. The employer 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 claim form pursuant to Labor Code Section 5401.

• The date the employee tests positive—this is the date the specimen was collected for testing.

• 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.

• 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.

There are separate reporting requirements for positive tests between July 6, 2020 and up to today. If an employer is aware of an employee who has tested positive during this period, the employer must report the information in the first three bullet points above, via e-mail or fax, to its Workers Compensation carrier within 30 business days of the date this legislation took effect. However, instead of the last bullet point, the employer must report the highest number of employees who reported to work at each of the employee’s specific places of employment on any work date between July 6, 2020 and the date SB 1159 takes effect.

The Workers Compensation carrier will use the above information to determine whether an outbreak has occurred. Following these reporting requirements is crucial as SB 1159 institutes a penalty of $10,000 for an employer that “intentionally submits false or misleading information or fails to submit information.”

The impact of the Bill on the COVID-19 Workers Compensation claims and Workers Compensation generally in California are not yet known, but G2 will continue to monitor these impacts and guide our clients through these challenging times. For complete details including definitions, guidance, and employer reporting rules, please refer to the bill text and speak with your G2 advisor.