California Workers’ Compensation Act Creates Disputable Presumption Related to COVID-19

California Workers’ Compensation Act Creates Disputable Presumption Related to COVID-19
September 18, 2020 dmock2015

Senate Bill (SB) 1159, which takes effect immediately as an urgency statute, amends the California Labor Code to add sections 3212.86-3212.88 relating to workers’ compensation claims and COVID-19.

Labor Code section 3212.86 applies to labor or services that took place on or after March 19, 2020, and on or before July 5, 2020.

Section 3212.87 applies to specified active firefighting members, peace officers, and fire and rescue service coordinators. It also applies to employees who provide direct patient care, or custodial employees in contact with COVID-19 patients, who work at a health facility (as defined), and other specified healthcare providers.¬†This section provides that injury for purposes of the Workers’ Compensation Act as to these employees shall include illness or death resulting from COVID-19 if:

    1. 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; and
    2. Such labor or services took place on or after July 6, 2020.

Section 3212.88 provides that injury for purposes of the Workers’ Compensation Act, for those employees not covered by section 3212.87 and whose employer has 5 or more employees, shall include illness or death resulting from COVID-19 if:

    1. 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;
    2. Such labor or services took place on or after July 6, 2020; and
    3. The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.

An outbreak exists if within 14 calendar days: (1) 4 employees test positive where the employer has 100 or fewer employees at a specific place of employment; (2) 4% of the number of employees who reported to the specific place of employment of an employer with more than 100 employees at such location test positive; or (3) a specific place of employment is ordered to close by a local health department, the State Department of Public Health, Cal/OSHA, or a school superintendent due to a risk of infection with COVID-19. This section also creates reporting requirements for the employer with respect to its claims administrator when the employer knows or has reason to know that an employee has tested positive for COVID-19; however, the employer shall not provide any personally identifiable information regarding the employee unless the employee asserts the infection is work related or has filed a workers’ compensation claim form.

Sections 3212.86-3212.88 each create a disputable presumption that the injury arose out of and in the course of employment. Each also requires that the employee use and exhaust any available paid sick leave benefits specifically available in response to COVID-19 before any temporary disability benefits or other specified benefits are due and payable.

These provisions are automatically repealed on January 1, 2023.