Employers May Be Charged up to $10,000 if they Don't Report COVID-19 Related Worker's Comp Claims


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.

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