California SB1159 was signed into law by Governor Gavin Newsom on September 17, 2020 and took effect immediately. This bill codified Executive Order N-62-20 and created a new set of guidelines and rebuttable presumption for COVID-19 related claims for dates of injury after July 6, 2020. The workers’ compensation guidelines and rebuttable presumption enacted by SB 1159, which were set to expire on January 1, 2023, have been extended until January 1, 2024 by Assembly Bill 1751.
For the purposes of codification, SB1159 takes its place as Labor Code §3212.86 et seq., Labor Code §3212.87 et seq. and Labor Code §3212.88 et seq.
Labor Code §3212.86 et seq. sets forth the rebuttable presumption requirements and §3212.87 et seq. focuses on the applicability of a presumption of compensability applying to COVID-19 cases involving frontline workers including but not limited to firefighters, peace officers, hospital employees and individuals at health facilities including nurses, emergency medical technicians, paramedics, direct patient care agencies, etc.
Labor Code §3212.88 et seq. applies to non-frontline employees not covered under Labor Code §3212.87.
For the purposes of this memorandum, focus is being placed on the employer’s responsibilities relative to reporting COVID-19 positive tests to third-party administrators. This memorandum does not purport to provide an in-depth analysis of all the provisions set forth in Labor Code §3212.86, §3212.87 and §3212.88.
The legislation establishes a rebuttable presumption that under certain circumstances, COVID-19 may be a compensable injury under the California Workers’ Compensation statutes if it can be traced to a COVID-19 “outbreak” which has occurred at a specific place of employment. Among various stringent requirements, the law requires employers to report all occupational and non-occupational COVID-19 positive tests that occur at the specific place of employment to their third-party administrators. A worksite outbreak exists if, within 14 calendar days, one of the following occurs at a specific place of employment:
1. At companies with more than 100 employees, at least 4% of the employees have tested positive for COVID-19;
2. At companies with 100 or fewer employees, at last 4 employees have tested positive for COVID-19; or
3. There is an order to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a community college district chancellor, school president, or school superintendent due to a risk of infection with COVID-19.
Reporting Requirements
Employers are required to report the following information listed below to their third-party claims administrators. It should be noted that if an employer or other person acting on the employer’s behalf intentionally submits false or misleading information or fails to submit information when reporting, they may be subject to a civil penalty in the amount of up to $10,000.00 to be assessed by the Labor Commissioner.
1. Employees testing positive for COVID-19 from 7/6/2020 through 9/16/2020;
Any employer who is aware of an employee testing positive for COVID-19 on or after July 6, 2020 and prior to September 17, 2020 shall report to their claims administrator, in writing via electronic mail or facsimile, within 30 business days of 09/17/2020, the following information:
(1) An employee has tested positive. For purposes of this reporting, 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 Section 5401. (Note: As specified within the legislation, it is critically important to maintain confidentiality of the identity of individuals who are not asserting COVID-19 as work related. Although there is an affirmative obligation for employers to notify the third-party administrator of a positive test result, the personally identifiable information of employees who test positive, but who are not asserting their COVID-19 is work related or have not filed a Claim Form, cannot be provided by the employer to the claims administrator)
(2) The date that the employee tests positive, which is the date the specimen was collected for testing.
(3) The specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test.
(4) 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.
2. Employees testing positive for COVID-19 from 9/17/2020 through 12/31/2023:
When an employer knows or reasonably should know that an employee has tested positive for COVID-19 during the above time period, the employer shall report to their claims administrator in writing via electronic mail or facsimile within three business days of such knowledge.
(1) An employee has tested positive. For purposes of this reporting, 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 Section 5401. (Note: As specified within the legislation, it is critically important to maintain confidentiality of the identity of individuals who are not asserting COVID-19 as work related. Although there is an affirmative obligation for employers to notify the third-party administrator of a positive test result, the personally identifiable information of employees who test positive but who are not asserting their COVID-19 is work related or have not filed a Claim Form cannot be provided to the claims administrator)
(2) The date that the employee tests positive, which is the date the specimen was collected for testing.
(3) The specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test.
(4) 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.
To enable our clients to satisfy these reporting requirements, ESIS has created the attached reporting form. The form must be completed for each positive COVID test and emailed to ESIS_Covid19_Reports@esis.com. ESIS will refer to this information when adjusting workers compensation claims in order to establish whether an outbreak has occurred and if a COVID presumption is applicable for occupational (work-related) claims as defined by SB 1159.
You can access the reporting form here.
To reiterate, ALL positive test results for COVID-19 that have occurred since July 6, 2020, regardless of whether they are determined to be occupational or non-occupational, must be reported using the attached form.
Please note that the reporting of positive test results through this California reporting procedure is not a substitute for the existing workers compensation claims reporting protocol. To report a workers compensation claim, you must continue to follow your normal claim reporting processes in addition to complying with the reporting requirements outlined in this memorandum.
If you have any questions, please contact your ESIS Partnership Leader.