|On September 17, 2020, Governor Gavin Newsom signed Senate Bill (SB) 1159 in law. It codifies much of Executive Order N-62-20, which he issued on May 6, 2020. This new law is effective immediately and will remain in effect until January 1, 2023, at which time it will be automatically repealed.|
The law requires employers with five (5) or more employees to report a claim when the employer knows or reasonably should have known that an employee has tested positive. Please note, this is irrespective of the employee’s intent of filing a worker’s compensation claim. If the employer knows or reasonably should have known that an employee tested positive but does not wish to file a workers compensation claim, the employer is still required to report a claim WITHOUT personal information (Name, SSN or DOB) within three (3) business days.
Each insurance carrier will have their own guideline, but we recommend first name “COVID” and last name “Claimant 1, 2, 3, etc.” The employer should keep a record of which anonymized claimant corresponds with which employee so that, if the employee later alleges that their exposure to the disease is work-related, the report-only claim can be converted into a worker’s compensation claim. When reporting an anonymized report-only claim, the employer should also indicate:
The date the employee tests positive (defined as the date the specimen was collected for testing).The specific address or addresses of the employee’s employment during the 14-day period preceding the date of the positive test.The highest number of employees who reported to work at the employee’s specific location of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.
This reporting requirement is also retroactive to July 06, 2020. Employers who fail to submit this information are subject to a civil fine up to $10,000. This reporting information is important because the bill creates a compensability presumption for “outbreaks” which is defined as:
a) Four (4) employees testing positive within a 14-day period for work locations with less than 100 employees.
b) 4% of employees testing positive within a 14-day period for work locations with more than 100 employees
If there is no outbreak as defined in the bill, an employee who alleges a work-related COVID-19 exposure claim will be assessed using standard arising out of employment (AOE) and occurring in the course of employment (COE) analysis.
The bill also imposes different standards for compensability for frontline workers (police officers, firefighters, healthcare workers such as physicians, nurses, EMTs, home health agencies). For employees in these industries, contracting COVID-19 is presumed compensable in line with the previously issued Executive Order N-62-20. The outbreak criteria does not apply to frontline workers.
If you have questions or concerns about how this may impact you give us a call.
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