Governor Newsom Signs Legislation to Protect California’s Workforce Amid the COVID-19 Pandemic
Below you will find a summary of this new law which goes into effect today September 17, 2020. It is an urgency statute.
What do you need to know?
1. The statute is temporary
Governor Newsom signed SB1159 into law on September 17, 2020. It is effective immediately and directly effects workers compensation claims, as they relate to the novel coronavirus (COVID19). This new statute is temporary, expiring January 1, 2023.
2. The statutes are similar but have subtle differences.
· LC 3212.86 addresses employees who contracted COVID19 between May 6, 2020 (the date of the Governors’ original order) and July 5, 2020.
· LC 3212.87 addresses police, firefighters, healthcare workers and other front line workers who contract COVID19 on or after July 6, 2020.
· LC 3212.88 address COVID19 allegations on or after July 6, 2020 and covers all other employees not mentioned in 3212.86 or 3212.87 and whose employer has 5 or more employees.
3. It adds to the definition of injury.
This statue changes the definition of injury, under the Labor Code. The definition of injury now includes “illness or death resulting from the 2019 novel coronavirus disease (COVID19)”.
4. It defines first responders.
Per LC 3212.87, first responders have been specifically defined as fire fighters, peace officers, fire and rescue services coordinators, registered nurses and emergency medical technicians. It also covers employees who provide direct patient care or custodial employees in contact with COVID19 patients who work at a health facility, employees who provide direct patient care for a home health agency and providers of in-home supportive services.
5. It provides specific presumption guidelines for first responders.
For first responders alleging COVID19 injury on or after July 6, 2020 the presumption is disputable but the carrier has only 30 days from the date of filing to accept or deny the claim. If the claim is not denied within 30 days after the claim form is filed it is presumed compensable. The LC specifically states that the date the employee tests positive is the date the specimen was collected, not the date of the results, and unless otherwise noted, a test means a PCR (Polymerase Chain Reaction) test and does NOT include a serologic test (aka antibody testing)
6. It changes rebuttable presumption deadlines.
LC 3212.86 creates a disputable presumption that the injury is AOE/COE for specific dates of injury and states other evidence, provided by the carrier, may controvert it. In other words, the burden of proof is on the employer. This presumption is limited to a certain set of circumstances. The employee must have been tested positive, or diagnosed with COVID19, within 14 days after they performed work at the job site, per their employers’ direction. Additionally, the employee must not have worked at home during that entire 14-day period. This applies to injuries between March 19 and July 5, 2020. For injuries during this period, the employer has 30 days from filing of the notice to accept or deny the claim.
LC 3212.88 applies to allegations of work related COVID19 exposure on or after July 6, 2020. For injuries alleged post July 6, 2020 the carrier has 45 days from the filing of the claim to accept or deny the claim. (For injuries prior to July 6, 2020 the presumption is 30 days) If the claim is not denied within this time frame it is presumed compensable. Any claim relating to COVID 19 is presumptively compensable after 45 days, rather than 90 for other types of injuries.
*Note that Section 3212.88 applies to employees who test positive “during an outbreak” at the employee’s specific place of employment. Subsection (l) says a claim is not part of an outbreak if it occurs during a 14-day period where the number of positive tests under subdivision (m)(4) have not been meet. Per (m)(4), an “outbreak” exists if, within 14 calendar days, 4 percent of the number of employees who reported to the specific place of employment test positive for COVID-19; or the specific place of employment is ordered to close by a local public health department due to a risk of infection with COVID-19. If a claim is not part of an outbreak, then Section 3212.88 may not apply, and the 5402 presumption arguably still applies.
7. It sets guidelines for who can make a diagnosis and how the diagnosis is to be made.
For a COVID19 diagnosis, the diagnosis must be from a licensed physician or surgeon holding an MD or D.O., a state licensed physician assistant (PA) or nurse practitioner. This diagnosis must be confirmed by testing or serologic test within 30 days of the date of the diagnosis.
8. It indicates how TTD is to be paid.
The statute requires an employee to exhaust their pandemic specific paid sick leave benefits before receiving TTD. If they do not have these type of benefits then TTD shall be paid immediately. There is no 3-day waiting period for disability related to COVID19. TD benefits must be certified every 15 days within the first 45 days following the diagnosis.
9. It indicates how death benefits are to be paid.
Death benefits are paid to dependents and partial dependents as all other claims, however, should the injured worker die from COVID19, and have no dependents of any kind, no death benefits are payable to the State.
10. It indicates what benefits may be provided to an injured worker diagnosed with COVID19.
Benefits payable under this statute include “full hospital, surgical, medical treatment, disability indemnity and death benefits, as provided by this division.”
11. It sets new employer reporting obligations, including penalties for employers should they not comply.
This statute requires that when an employer knows, or reasonably should know an employee has tested positive for COVID19 they need to report to their carrier or administrator the following:
A. An employee has tested positive. No identifiable information on the employee is to be provided UNLESS the employee is alleging the infection is work related and/or has complete a claim form.
B. The date the employee tested positive.
C. The specific address of the employees’ place of employment during the 14-day period preceding the positive test.
D. The highest number of employees who reported to work at the specific place of employment in the 45-day period preceding the last day the employee worked at the specific place of employment.
If an employer does not report this information or intentionally submits false or misleading information, they may be subject to a civil penalty of $10,000.
Reach out to us if you have any questions!