Keenan Briefings

Briefings

Updated September 18, 2020: SB 1159: California Legislature Passes Bill to Establish COVID-19 Presumption

September 08, 2020

Update: Governor Newsom signed SB 1159 into law on September 17, 2020. Keenan is working with the Division of Workers’ Compensation to get clarification on some aspects of the case tracking requirements and will continue to update clients as new information is provided.

On August 31, 2020, the California Legislature passed SB 1159. If signed into law by Governor Newsom, SB 1159 will create a rebuttable statutory presumption that cases of COVID-19 arise out of and in the course of employment for purposes of workers’ compensation, effective upon signing. This Briefing will summarize the bill and discuss its impacts on public agencies, school districts, hospitals and other employers.

Three Categories of Employees

The bill creates three distinct categories of employees to whom the rebuttable presumption would apply.

  1. Workers covered by Governor Newsom’s Executive Order N-62-20, which expired on July 5, 2020. The bill would not extend the terms of the executive order past July 5 but would codify it which means it will be added to the Labor Code. This will remove any concern raised about the legality of the Governor’s executive order.
  2. Peace officers, firefighters, emergency medical services providers, home health workers, and certain health care employees (working at health facilities and either provide direct patient care or had contact with a patient within 14 days before a COVID-19 positive test), who contract COVID-19. This presumption would be in effect from July 6, 2020 until January 1, 2023. For health care workers who do not provide direct patient care (or custodial employees of health care facilities in contact with COVID-19 patients), the presumption would not apply if the employer can establish that the employee did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19. For this category of employees, claims administrators will have 30 days to investigate, rebut or accept the presumption.
  3. Employees who contract COVID-19 from any employer that experiences an "outbreak" of COVID-19 cases at a particular work location. The bill defines an "outbreak" as follows:
    1. For employers with 5-100 employees, 4 or more employees who worked at a specific work location tested positive within a 14-day period;
    2. For employers with more than 100 employees, 4% or more of the employees who worked at a specific work location tested positive within a 14-day period.

The bill specifies that evidence to rebut the presumption in the case of an “outbreak” includes, but is not limited to, evidence of measures in place to prevent transmission of COVID-19 and evidence of an employee's nonoccupational exposure to COVID-19. For this category of employees, claims administrators will have 45 days to investigate, rebut or accept the presumption. This presumption would be in effect from July 6, 2020 until January 1, 2023.

Employer and Claims Administrator Responsibilities

If signed, SB 1159 will impose new obligations upon employers and claims administrators with regard to COVID-19.

When an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer will be required to report all of the following information to their workers’ compensation claims administrator in writing via electronic mail or facsimile within three business days.

  • 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 Labor Code § 5401.
  • The date that the employee tests positive, which is the date the specimen was collected for testing.
  • 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.
  • 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.
  • Any employer who is aware of an employee testing positive on or after July 6, 2020, and prior to the effective date of the bill must report to their claims administrator, in writing via electronic mail or facsimile, within 30 business days of the effective date of this section, all of the data required above, including the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between July 6, 2020, and the effective date of the bill.

In turn, SB 1159 will require a workers’ compensation claims administrator to use the information reported by the employer to determine if an outbreak has occurred for the purpose of administering a claim, including an outbreak that occurred between July 6, 2020 and the effective date of the bill.

Coordination with Paid Sick Leave

If an employer offers paid sick leave benefits specifically available in response to COVID-19 (including paid sick leave time under the FFCRA and the CARES Act), those benefits shall be used and exhausted before any temporary disability benefits or the following benefits are due and payable:

  • Benefits afforded to peace officers and firefighters under Labor Code sections 4800, 4800.5, or 4850.
  • Industrial accident and illness leave for employees of K-12 schools and community colleges under Education Code Sections 44977, 44984, 45192, 45196, 87780, 87787, 88192, or 88196.

If an employee does not have those sick leave benefits, the employee shall be provided temporary disability benefits or Section 4850 benefits, if applicable, from the date of disability. There shall not be a waiting period for temporary disability benefits.

Penalties

Employers or others acting on behalf of employers who intentionally submit false or misleading information or fail to submit information are subject by the bill to a civil penalty of up to $10,000.00.

Impact on Employer Groups

Schools and Community Colleges—The peace officer presumption does not extend to members of a school district or community college police department. Generally speaking, the health care worker presumption would not apply to a school nurse because that nurse does not work in a “health facility” (acute care hospital, acute psychiatric hospital, skilled nursing facility, intermediate care facility/developmentally disabled-continuous nursing or hospice facility) as defined by the bill. For community colleges, the bill does not present a clear answer as to whether the presumption would apply to student nurses or public safety students working as part of their curricular requirements. This is one of the areas where we will be seeking clarity from the Department of Industrial Relations. Schools will be subject to the outbreak presumption for all employees dating back to July 6, 2020 with a 45-day period to investigate and accept or rebut claims. Schools and community colleges will also have to be careful to ensure they are coordinating workers’ compensation with COVID-19 specific leave as well as the statutory paid leaves as outlined above.

Municipalities—Municipalities will likely have peace officers and fire protection workers subject to a presumption with a 30-day investigation period. Other employee claims would still be subject to the “outbreak” presumption if they qualify. Municipalities will need to ensure that they coordinate workers’ compensation with COVID-19 specific leave as well as the statutory paid leaves for peace officers and fire protection workers as outlined above.

Hospitals—The peace officer presumption does not extend to persons regularly employed as security officers for health facilities, as defined under Penal Code 830.7. However, the healthcare worker presumptions will be in effect, along with a 30-day period to investigate and accept or rebut claims.


Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.