California Extends Workers’ Comp Presumption for COVID-19 On Sept. 17, 2020, California amended its workers’ compensation (WC) law, under Senate Bill 1159 (SB1159), to provide a presumption that COVID-19 is a compensable, work-related condition under certain circumstances. The changes went into effect immediately.


In general, the changes mean that it would be an employer’s burden to prove that an employee did not contract COVID-19 on the job, rather than the employee’s burden of proving that he or she did contract it on the job. A similar presumption was previously implemented under Executive Order N-62-20, but that had only applied for employees who worked outside their homes between March 19 and July 5, 2020. With some modifications, the new law adopts and expands that order to cover certain employees through Jan. 1, 2023. It also creates retroactive and ongoing reporting requirements for employers with five or more employees in the state. This Compliance Bulletin provides a general overview of the amendments.


California employers should become familiar with SB1159, review their policies and procedures to ensure compliance, and begin submitting reports on any employees who have tested positive for COVID-19 since July 6, 2020. Employers should also follow all workplace safety guidance from the Occupational Safety and Health Administration (OSHA), the Centers for Disease Control and Prevention (CDC) and local health authorities to minimize the risk of employees contracting COVID-19 on the job.


BACKGROUND

Workers’ compensation is a no-fault system that provides medical expenses and lost-income replacement for employees who sustain injuries or illnesses that arise out of and in the course and scope of their employment. Each state has its own workers’ compensation law that governs the process of determining whether an injury or illness is work related and therefore compensable. Under California’s workers' compensation law, employees typically have the burden of proving that any claimed condition is work related. On May 6, 2020, however, California’s governor issued Executive Order N-62-20 to reverse that burden for employees who were diagnosed with or tested positive for COVID-19 within 14 days after working at their places of employment between (and including) March 19 and July 5, 2020. On Sept. 17, 2020, the state enacted SB1159 to add the provisions of that order to the state’ workers’ compensation law and to extend the presumption that COVID-19 is work related to certain employees through Jan. 1, 2023.


NEW PRESUMPTIONS UNDER SB1159

SB1159 creates a new presumption that COVID-19 is compensable for the following types of workers, if they test positive for COVID-19 within 14 days after working at a place of employment (not including their own homes), at an employers’ direction, on or after July 6, 2020:

• Active firefighting members (including volunteers) of various, local, state and federal fire departments;

• Peace officers who primarily engage in active law enforcement activities;

• Fire and rescue services coordinators who work for the Office of Emergency Services;

• Health facility workers who provide direct patient care to or come into contact with COVID-19 patients;

• Certain registered nurses, emergency medical technicians and emergency medical technician-paramedics;

• Workers who provide direct patient care for a home health agency;

• Workers who provide in-home supportive services outside their own homes.


In addition, SB1159 extends the presumption to any employee who tests positive for COVID-19 within 14 days after working at a place of employment, at an employers’ direction, on or after July 6, 2020, if:

• The employer has five or more employees;

• The employee tests positive during an outbreak at the employee’s specific place of employment. For this purpose, an “outbreak” exists when one of the following occurs:

1. Four employees at a specific workplace test positive for COVID-19 within a 14-day period, if the employer has 100 employees or fewer at that workplace;

2. Four percent of the employees who reported to a specific workplace test positive for COVID-19 within a 14- day period, if the employer has more than 100 employees at that workplace;

3. A specific workplace is ordered to close by a local or state public health authority due to COVID-19-related risk. A specific workplace means the building, facility, store, field or other location where an employee performs work at the employer’s direction. It does not include an employee’s home, unless the employee provides home health care services to another individual there.


NEW REPORTING REQUIREMENTS:

SB1159 imposes two new reporting requirements on employers that have five or more employees in the state. These requirements aim to help claims administrators determine if an outbreak exists for purposes of administering an employee’s claim.

1. The first requirement is retroactive. Specifically, if an employer is aware that an employee tested positive for COVID-19 between July 5, 2020, and Sept. 17, 2020, the employer must file a written report with its workers’ compensation claims administrator within 30 business days.

2. The second requirement is ongoing and applies any time an employer knows or reasonably should know that an employee has tested positive for COVID-19 after Sept. 17, 2020. When this occurs, the employer must submit a written report to its workers’ compensation claims administrator within three business days. Both of these reports must indicate that an employee has tested positive but must not include any personally identifiable information, unless the employee asserts the infection is work related. The reports must also include:

• The date the employee’s specimen was collected for testing;

• The addresses of the employee’s specific places of employment during the 14-day period before the date of his or her positive test;

• The highest number of employees who reported to work at the employee’s specific place of employment either: On any given work day between July 6 and Sept. 17, 2020 (for the retroactive reporting requirement); or o In the 45-day period before the last day the employee worked at each specific place of employment (for the ongoing reporting requirement).


If an employee works in multiple places at the employer’s direction and tests positive for COVID-19 within 14 days after last working in any of those locations (other than his or her own home), the employer must count that as a positive test for each of those workplaces. In addition, any location where an outbreak does exist would be considered the employee’s “specific place of employment.”


Civil penalties of up to $10,000 may be assessed if an employer fails to file these reports or intentionally submits false or misleading information on them.


DISPUTING COVID-19 CLAIMS

When an employee is presumed to have a compensable claim for COVID-19, the employer may present evidence to rebut the presumption. Types of evidence that may help prove that an employee did not contract COVID-19 on the job include, for example, any measures the employer has in place to reduce potential transmission in the employee’s workplace and any nonoccupational risks of COVID-19 infection the employee may have. An employer that wishes to dispute an employee’s presumptively compensable claim for COVID-19 must formally reject liability within either 30 days (for claims that do not depend on the existence of an outbreak for the presumption) or 45 days (for claims associated with an outbreak). Otherwise, the employer will be barred from using any already-discovered evidence to dispute the claim.


In this new normal, many employers have seen how efficient and cost saving it is to have employees work from home. Just like in pre-COVID times, once in a while you may need to let an employee "go". ERM Insurance wants to make sure that you go through all of the same protocols and precautions during this process.


Step 1: Prepare for your meeting:

• Choose a virtual platform so that you can see them face to face, it is common courtesy.

• Set up the meeting. Take into account employees time zones when scheduling. Include the employee who will be terminated, HR, and the employee’s manager as including all necessary participants can eliminate the need for multiple conversations and ensure that the affected employee’s questions and concerns are addressed.

• Review your company’s policies to ensure strict compliance. Ensure that your organization’s termination practices and guidelines are followed.

• Communicate the termination with IT so they can remove the terminated employee's access to internal networks during the meeting time.


Step 2: Conduct the Meeting

• Announce all participants

• Address benefits, severance and vacation pay. Be sure to let employees know what will happen to their benefits, including but not limited to: o Health insurance o 401(k) or other retirement accounts o Health savings accounts (HSAs) or flexible spending accounts (FSAs) o COBRA eligibility and details. Make sure to address follow-up materials that an employee will be receiving electronically or via mail.

• Address work responsibilities and tying up loose ends.

• Discuss follow-up actions with the employee. The termination meeting is also the correct time to discuss any required follow-up actions from the employee. Ensure that the terminated employee is aware of what this process will look like, and has the necessary resources to complete any required tasks.


Step 3: Collecting Your Property

• To help make the returning of documents, materials, and equipment we suggest overnighting prepaid self addressed packages and mail for the employee to return the materials. You can also include any termination paperwork that requires signatures.





The coronavirus (COVID-19) pandemic has highlighted the importance of health care benefits. Its impact has led to many elective procedures being delayed, and 2021 may look different than previous years. Given the impact of the coronavirus pandemic, many enrollees are increasingly conscious of having appropriate health care coverage.

The effects of the pandemic have also impacted open enrollment this year—with many employees feeling confused, anxious or stressed about making the right choices. Generally, many employees complete open enrollment rather quickly—but if you are feeling pressured this year, make sure to spend the time you need, and use available resources to make enrollment choices confidently.


Tips for a Successful Open Enrollment

As you prepare to enroll in benefits this year, know that proper preparation may help alleviate some of the concerns that you have. Consider the following tips when preparing for and completing open enrollment this year:


1. Reassess the health care needs of you and your dependents.

Health care needs change year to year, and open enrollment offers you a chance to reevaluate your health coverage. As you prepare for open enrollment this year, make sure to evaluate whether you’ve had any changes in the past year, or if you anticipate changes in health care needs in the upcoming year. Questions to consider include:

  • Have you added any dependents?

  • Do you anticipate changes in the health care needs of you or your dependents this year?

  • Do you anticipate any changes in how regularly you or your dependents will be seeing health care providers?

  • Do you or your dependents anticipate changes in the use of prescription medications?

2. Take time to review benefits offerings thoroughly. Benefits offerings often adapt and change, so make sure to take time to review all offerings and open enrollment resources. As plans and costs can change year to year, ensure you thoroughly review open enrollment resources that are provided to you, and ensure any questions you have are addressed before making any choices.

3. Reevaluate medical coverage offerings. There isn’t one plan that is best for everyone. Health care needs change over time, so don’t be afraid to review a health plan that might be different from what you enrolled in last year. As you consider medical coverage plans, evaluate costs you may incur outside of purely premiums—including deductibles, copays, coinsurance, out-of-pocket maximums and prescription coverage.

4. Check your network and preferred health care providers. Notably, the coronavirus has led to closings and many changes within health care. Find time to check whether your preferred health care providers are in your chosen network. Changes in health care providers can take place abruptly, and now is an excellent time to double-check the status of your preferred providers.


5. Review voluntary insurance options. After selecting your health coverage, make sure to consider voluntary insurance options. Common voluntary insurance options include dental and vision benefits. If offered, consider whether these may be for right for you. For dental care, consider factors such as whether you are planning regular cleanings, or whether you anticipate using orthodontics services—as these factors may influence the appropriate level of coverage for you and your dependents. For vision coverage, know that vision insurance can be either a vision benefits plan or a vision discount plan. A vision benefits plan grants you coverage and often includes an allowance for frames and lenses. A discount plan typically has a lower premium and offers discounts for vision services within a network.

Also, take time to review other voluntary benefits, as options that you may have previously overlooked can expand your coverage during this challenging time. Consider whether life insurance, disability insurance, accidental death and dismemberment (AD&D) insurance and any other voluntary insurance options offered could be right for you.


6. Be aware of all available resources. Take time to make sure you are aware of all offered resources, including mental health resources, an employee assistance program (EAP), telemedicine services and any other benefits that are available.

7. If you haven’t started one, consider an HSA or FSA. If you haven’t started a health savings account (HSA) or a flexible spending account (FSA), consider whether these options are a good fit for you. While each plan is unique and offered as an option depending on what medical coverage you enroll in, both allow you a tax-advantaged way to set aside pre-tax funds to be used for health care expenses.

8. Revisit your retirement plan. Open enrollment is a good time to revisit your retirement plan. Review your contribution rate, investment options and whether your current plan aligns with your retirement goals. Open enrollment is also a good time to ensure that your beneficiaries are up to date. While there may be no change within the last year, consider using this time to double-check your designations and adjust if necessary.

Preparing for a Successful Open Enrollment

It’s important to take the time to thoroughly review all benefits options and enroll in the ones that best fit your unique circumstances. While open enrollment may require you to make challenging decisions, proper preparation can put you in a position to confidently make the proper benefits choices.

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