On 17 September 2020, California Governor Gavin Newsom signed into law a bill (Senate Bill 1159, the ‘Bill’) which modifies and extends a previous order (Executive Order N-62-20) that created a disputable workers’ compensation presumption that illness or death related to COVID-19 is an occupational injury and therefore eligible for benefits. The statute takes effect immediately and remains in effect through 1 January 2023.
The presumption is ‘disputable’ in that an employer may dispute the presumption with evidence such as evidence of:
There are two criteria for the presumption (pursuant to Labor Code sections 3212.87 and 3212.88). For employees meeting the criteria for the presumption under Section 3212.87 (the First Responders and Health Care Workers presumption), the employer will have up to 30 days to investigate and decide whether to accept or deny the claim. If the employer fails to reject the claim within 30 days, the injury or illness is presumed compensable, and the employer can then rebut that presumption only with evidence discovered after the 30-day period. The corresponding time period for employees who otherwise meet the criteria for the presumption (set out in Labor Code s3212.88) is 45 days.
The presumption exists for employees who suffer illness or death resulting from COVID-19 on or after 6 July 2020 through 1 January 2023.
Who is covered?
The presumption under Section 3212.88 applies to all employees:
The term ‘injury’ includes illness or death resulting from COVID-19, and all of the following conditions must exist for the presumption to apply:
What is an ‘outbreak’?
An ‘outbreak’ exists if, within 14 calendar days, one of the following occurs at a specific place of employment:
What is a ‘specific place of employment’?
The Bill defines a ‘specific place of employment’ as ‘the building, store, facility, or agricultural field where an employee performs work at the employer’s direction.’ It explicitly excludes the employee’s home or residence, ‘unless the employee provides home health care services to another individual at the employee’s home or residence.’
What benefits are available to the employee?
The compensation includes ‘full hospital, surgical, medical treatment, disability indemnity, and death benefits.’ The Bill specifically waives the Department of Industrial Relations’ right to collect any death benefits for deceased employees with no dependents (Labor Code Section 4706.5).
Under the Bill, if an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits must be used and exhausted before any temporary disability benefits. However, if an employee does not have those sick leave benefits, the employee must be provided temporary disability benefits from the date of disability without any waiting period.
To qualify for temporary disability, an employee must satisfy either of the following:
When the employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report to its claims administrator in writing via email or fax within three business days all of the following:
Note that the Bill establishes a penalty of up to USD 10,000 for an employer ‘who intentionally submits false or misleading information or fails to submit information’ when reporting.